Natural Rights and the First Amendment

abstract. The Supreme Court often claims that the First
Amendment reflects an original judgment about the proper scope of expressive
freedom. After a century of academic debate, however, the meanings of speech
and press freedoms at the Founding remain remarkably hazy. Many scholars, often
pointing to Founding Era sedition prosecutions, emphasize the limited scope of
these rights. Others focus on the libertarian ideas that helped shape
opposition to the Sedition Act of 1798. Still more claim that speech and press
freedoms lacked any commonly accepted meaning. The relationship between speech
and press freedoms is contested, too. Most scholars view these freedoms as
equivalent, together enshrining a freedom of expression. But others assert that
the freedom of speech, unlike press freedom, emerged from the legislative
privilege of speech and debate, thus providing more robust protection for
political speech.

This Article argues that Founding
Era elites shared certain understandings of speech and press freedoms, as
concepts, even when they divided over how to apply those concepts. In
particular, their approach to expressive freedom was grounded in a multifaceted
understanding of natural rights that no longer survives in American
constitutional thought. Speech and press freedoms referred, in part, to natural
rights that were expansive in scope but weak in their legal effect, allowing
for restrictions of expression to promote the public good. In this respect, speech
and press freedoms were equivalent concepts with highly contestable
implications that depended on calculations of the public good. But expressive
freedom connoted more determinate legal protections as well. The liberty of the
press, for instance, often referred specifically to the rule against press
licensing, while the freedom of speaking, writing, and publishing ensured that
well-intentioned statements of one’s views were immune from governmental
regulation. In this respect, speech and press freedoms carried distinct
meanings. Much of our modern confusion stems from how the Founders—immersed in
their own constitutional language—silently shifted between these complementary
frames of reference.

This
framework significantly reorients our understanding of the history of speech
and press freedoms by recognizing the multifaceted meanings of these concepts,
and it raises challenging questions about how we might use that history today.
Various interpretive theories—including ones described as “originalist”—might
incorporate this history in diverse ways, with potentially dramatic
implications for a host of First Amendment controversies. Most fundamentally,
however, history undercuts the Supreme Court’s recent insistence that the
axioms of modern doctrine inhere in the Speech Clause itself, with judges
merely discovering—not crafting—the First Amendment’s contours and boundaries.

author. Assistant Professor, University
of Richmond School of Law. The author thanks Randy Barnett, Will Baude, Nathan
Chapman, Saul Cornell, Jonathan Gienapp, Masha Hansford, Pam Karlan, Larry
Kramer, Corinna Lain, Kurt Lash, Maeva Marcus, Michael McConnell, Bernie
Meyler, Zach Price, Jack Rakove, Richard Re, Fred Schauer, Sid Shapiro, Larry
Solum, Andrew Verstein, Kevin Walsh, the editors of the Yale Law Journal, and participants in the Federalist Society Junior
Scholars Colloquium, the Georgetown Constitutional Law Colloquium, the
Institute for Constitutional History Junior Scholars Seminar, the Loyola
University Chicago Constitutional Law Colloquium, the Stanford Law School
faculty workshop, the University of Richmond School of Law faculty workshop,
the University of San Diego Originalism Works-in-Progress Conference, and the
Wake Forest University School of Law faculty workshop.

Introduction

Governments need to restrict expression. Whether someone is falsely yelling “fire” in a crowded theater, lying on the
witness stand, or conspiring to commit crimes, speech can be tremendously harmful. Yet communication is essential to human flourishing, and history has shown time and again that governments are prone to censorial abuse. An
enduring challenge for any legal system is balancing these concerns.

In its role as
constitutional mythologist, the Supreme Court often says that the First
Amendment answers this challenge. “The First Amendment itself reflects a judgment
by the American people that the benefits of its restrictions on the Government
outweigh the costs,” the Court recently declared, concluding that neither
politicians nor judges may “attempt to revise that judgment simply on the basis
that some speech is not worth it.”1

After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. “One can keep going round and round on the original meaning of the
First Amendment,” Rodney Smolla writes, “but no clear, consistent vision of
what the framers meant by freedom of speech will ever emerge.”2 Conventional wisdom holds that the freedom of
speech and the freedom of the press were equivalent concepts, together
comprising what we would now call a freedom of expression.3 But another prominent view is that the freedom of
speech, unlike the freedom of the press, emerged from the legislative privilege
of speech and debate,4 thus providing robust protection for political
speech.5 Still more scholars conclude that “freedom of speech, unlike freedom of the press, had little
history as an independent concept when the first amendment was framed.”6 And while some scholars espouse “little doubt
that the First Amendment was meant . . . to forbid punishment for
seditious libel,”7 debates among
the Founders on that topic would seem to belie any broadly shared original
understanding of speech and press freedoms.8 No wonder so many commentators have given up the
search for original meaning, with some concluding that the First Amendment was
simply “an aspiration, to be given meaning over time.”9

But perhaps this indeterminacy stems from our own interpretive
approach. “[T]he first key to
understanding the American Founding,” historian Jonathan Gienapp cautions, “is appreciating that it is a foreign world,” filled with many concepts that bear only a
deceptive resemblance to modern ideas.10Perhaps, then, we have
been looking for original meaning in the wrong way, instinctively trying to fit
the historical evidence to our own conception of constitutional rights.

Modern lawyers tend to view constitutional phrases like “the freedom of
speech” as terms of art, sparking searches for those terms in
eighteenth-century legal sources. In the context of speech freedom, that effort
produces sparse and inconsistent results. Americans, it turns out, rarely ever
used the term “freedom of speech.” Meanwhile, the Founders frequently mentioned
press freedom, but they did so in seemingly conflicting ways. The liberty of
the press, William Blackstone famously insisted, “consists in laying no
previous restraints upon
publications, and not in freedom from censure for criminal matter when
published.”11 Founding Era
commentaries about press freedom, however, routinely ventured beyond the topic
of press licensing.12

Proposing a paradigm shift, this Article argues that Founding Era
elites shared certain understandings of speech and press freedoms at a more
abstract, conceptual level even though they disagreed about how to apply those
concepts to particular constitutional controversies. The contested implications of speech and press
freedoms at the Founding, in other words, have obscured their more widely
shared meanings. To comprehend these
meanings, however, we must step back from the nitty-gritty details of legal
doctrine and grapple with the conceptual foundations of the First Amendment,
starting with the largely forgotten language of Founding Era rights discourse.13

For American elites, rights were divided between natural rights, which were liberties that people could exercise
without governmental intervention, and positive
rights, which were legal privileges or immunities defined in terms of
governmental action or inaction, like the rights of due process, habeas corpus,
and confrontation.14 Consequently, distinguishing natural rights from
positive rights was simple. “A natural right
is an animal right,” Thomas Paine succinctly explained, “and the power to act
it, is supposed, either fully or in part, to be mechanically contained within
ourselves as individuals.”15 Natural rights, in other words, were those that
did not depend on the existence of a government. Speaking, writing, and
publishing were thus readily identifiable as natural rights.

Though easy to identify, natural rights at the Founding scarcely
resembled our modern notion of rights as determinate legal constraints on
governmental authority. Rather, Americans typically viewed natural rights as
aspects of natural liberty that governments should help protect against private interference (through tort law, property
law, and so forth) and that governments themselves could restrain only to promote the public good and only so long as the
people or their representatives consented.16 And assessing the public good—generally
understood as the welfare of the entire society—was almost entirely a
legislative task, leaving very little room for judicial involvement.17 Natural rights thus powerfully shaped the
way that the Founders thought about the purposes and structure of government,
but they were not legal “trumps” in the way that we often talk about rights
today.

By the late eighteenth century, however, expressive freedom also
connoted a variety of more determinate legal protections. The liberty of the press, for instance, often
referred specifically to the rule against press licensing; by prohibiting
prior restraints on the press, this rule put juries in charge of administering governmental restrictions of
expression through criminal trials. Meanwhile, the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from regulation. In this limited
way, expressive freedom entailed legal “trumps.” Much of our modern confusion about the history
of speech and press freedoms stems from the way
that the Founders—immersed in their own constitutional language—silently
shifted between these two dimensions of expressive freedom.

Indeed, Founding Era rights discourse featured a symbiotic relationship
between natural rights and legal rules.18 In part, the common law indicated the scope of
natural rights both because of a presumed harmony between the common law and
natural law and because common-law rules were presumptively based on popular
consent and consistent with the public good. At the same time, the Founders
sometimes used natural law—the law of reason—to help shape their understandings
of positive law. To recognize a natural right, in other words, implied
recognition of its customary legal protections, and vice versa.19

The Founders, however, often disagreed about the precise relationship
between natural rights and the common law, leading to a confusing array of
statements about expressive freedom. In general, Federalists based their views
about natural rights on legal authority, not practical experience or abstract
reasoning, making judicial accounts of the common law decisive. But an opposing
interpretive tradition championed “popular” understandings of constitutional
and legal commands.20 Advocates of
this view, Saul Cornell explains, were “deeply suspicious of ceding so much
authority to lawyers and judges,” sometimes even going so far as to compare
“the chicanery of lawyers with the practices of ‘Romish priests in matters of
religion.’”21 For these
“popular” interpreters, who were often themselves erudite elites, practical
experience and common sense were paramount.

Because of these methodological disagreements, Americans who shared an understanding of speech and press
freedoms as natural rights often profoundly disagreed about the legal implications of the First
Amendment. Federalists in the late 1790s, for instance, typically invoked the
English common law to defend the constitutionality of sedition prosecutions,
while many Republicans appealed to practical experience and common sense to
reach the opposite conclusion. Yet this virulent disagreement among contending
elites began with a shared recognition of expressive freedom as a natural
right. This Article’s reframing thus illustrates that identifying
methodological differences among the Founders can help clarify, and not merely
complicate,22 the historical
meanings of constitutional concepts.

Debates about expressive freedom also were wide ranging because the
Founders often vehemently disagreed about which regulations of speech promoted
the public good. Many viewed narrowly drawn sedition laws as enhancing public debate by combating
efforts to mislead the public.23 Others thought that sedition laws created more
harm than good by chilling too much useful speech.24 But properly understood, this conflict did not
reflect profound divisions about the concept
of expressive freedom. Rather, the Founders disagreed about how to apply that concept to sedition laws.25

To set the stage for this historical argument, Part I discusses the
Article’s historical contribution and previews its potential modern
implications. It begins by offering a brief overview of related scholarship.
This overview sets in relief the Article’s focus on the interplay between
natural rights and the common law. The Part then explores the ways that this
revisionist account could influence modern understandings of the First
Amendment. In particular, it emphasizes that the Speech and Press Clauses were
originally rooted in a broader Founding Era discourse about natural rights—not,
as modern scholarship generally posits, a particular theory about why
expression warrants constitutional protection.

Part II then turns to the history, drawing out three different meanings
of speech and press freedoms at the Founding. First, speech and press freedoms were natural rights that were
regulable in promotion of the public good, meaning the good of the society as a
whole.26
Second, the Founders widely thought that the freedom to make well-intentioned
statements of one’s views belonged to a subset of natural rights, known as
“unalienable” natural rights, that could not be restricted in promotion of the
public good and thus fell outside legislative authority to curtail.27Third,
Americans recognized a variety of common-law rules that offered more determinate
legal protection for expressive freedom.28 A concluding Section then explores the
contested interrelationship between these concepts.29

Part II, it bears emphasis, aims to recover the principles that
Founding Era elites had in mind when designing and applying the Speech and
Press Clauses, but it is not directly
concerned with the original meanings of those provisions. Postponing that
discussion until Part III is deliberate. Indeed, this Article defends the view
that we cannot understand the meaning of
the First Amendment until we first understand the forgotten language in which
it was written.

With this conceptual framework in mind, Part III offers a novel
interpretation of the original meanings of the Speech and Press Clauses. The
argument proceeds by connecting the text and early interpretations of the First
Amendment to the framework developed in Part II. Throughout the
ratification debates and into the First Congress, supporters of a bill of
rights pushed for constitutional recognition of existing concepts. Therefore, to the extent that Founding Era
elites originally understood the First Amendment as imposing determinate limits
on congressional power, these limits were delineated by accepted common-law
rules and by the inalienable natural right to make well-intentioned statements
of one’s thoughts. Beyond these principles, however, the First Amendment left
unresolved whether certain restrictions of expression promoted the public good.
In laying out this argument, this Part also rebuts competing scholarly accounts
of the original meanings of the Speech and Press Clauses and emphasizes the
ways in which these Clauses had distinct meanings.

The Article then concludes by returning to the modern implications of
First Amendment history. A point of emphasis is the historical distance that
separates us from our constitutional past. If the Supreme Court wanted to apply
only those legal rules that the Founders recognized (or likely would have
recognized), a huge swath of modern case law would have to go. There is no evidence,
for instance, that the Founders denied legislative authority to regulate
expressive conduct in promotion of the public good—a principle that runs
contrary to countless modern decisions.

But beyond case-specific implications is a more fundamental point: the
early history of speech and press freedoms undercuts the mythological view that
foundational principles of modern doctrine inhere in the original Speech
Clause. The Justices, for instance, have repeatedly asserted that the First
Amendment itself strictly disfavors content-based regulations of speech.30 And when the Court recently derided the
government’s suggestion that some speech might be deemed “low value” and thus
subject to less rigorous scrutiny, it acted as if the Speech Clause contains a
full set of doctrinal rules.31 Lowering judicial scrutiny for less
valuable forms of speech, the Court explained, would “revise th[e] judgment”
that “[t]he First Amendment itself reflects.”32 Doubling down on this idea, the Court
later insisted that “[t]he whole point of the First Amendment” was to prevent
speech restrictions based on “a generalized conception of the public good.”33

Simply put, however, the First Amendment did not enshrine a judgment
that the costs of restricting expression outweigh the benefits. At most, it
recognized only a few established rules, leaving broad latitude for the people
and their representatives to determine which regulations of expression would
promote the public good. Whether modern doctrine serves those original
principles is then a judgment that we must
make. The original meanings of the Speech and Press Clauses do not provide the
answer.

I. stakes and implications

Before turning to the eighteenth century, it is worth making some
preliminary remarks about this Article’s contribution to historical scholarship
and its implications for modern doctrine.

A. Scholarly Contribution

This Article charts a new historical path by concentrating on the conceptual meanings, and not merely the
legal dimensions, of speech and press freedoms. For much of the twentieth
century, scholarship about expressive freedom at the Founding overwhelmingly
focused on the compatibility of sedition prosecutions with the First Amendment.34 While historically enlightening, much of this
scholarship offered little clarity about the First Amendment’s original meaning
beyond the topic of sedition. Some historians and legal academics have pursued
that effort more directly, but the literature falls far short of consensus.
Scholars typically treat speech and press freedoms as common-law rules, leading
many to emphasize the ban on prior restraints.35 Others, relying both on Federalist claims during
the ratification debates and on Republican arguments against the Sedition Act,
insist that the Speech and Press Clauses categorically withdrew all federal
authority over expression.36 Still more assert that the Speech Clause was
linguistically and substantively derived from the legislative privilege of
speech and debate.37 Finally, many
have simply thrown up their hands and declared the enterprise to be hopeless or
misguided.38

A few scholars have identified a connection between the First Amendment
and natural rights, but none has accounted for the multifaceted way that the
Founders referred to speech and press freedoms. Philip Hamburger, for instance,
classifies both freedoms as natural rights, emphasizing governmental authority
to prevent encroachment on the rights of others.39 Yet Hamburger never grapples with the complex
relationship between natural rights and customary legal rules—an issue that
profoundly shaped Founding Era disputes about expressive freedom.40 Meanwhile, others who describe speech and
press freedoms as natural rights typically view the First Amendment as a
categorical ban on any federal restrictions of expression.41

This Article, by contrast, presents an understanding of Founding Era
expressive freedom grounded on the interrelationship between common-law
traditions and natural-rights principles. As a general matter, natural rights
did not impose fixed limitations on governmental authority. Rather, Founding
Era constitutionalism allowed for restrictions of natural liberty to promote
the public good—generally defined as the good of the society as a whole.42 Recognition of natural rights, in other
words, simply set the terms of political debate, not the outcomes. In this
sense, speech and press freedoms were expansive in scope—applying to all forms
of expression—but weak in their legal effect. And no evidence indicates that
the First Amendment empowered judges to determine whether particular
restrictions of speech promoted the general welfare.43 (Although perhaps strange to modern
readers, this interpretation of the First Amendment—generally permitting the
government to restrict speech in the public interest—survived into the early
twentieth century.44)

Nonetheless, the Founders also accepted that speech and press freedoms
denied the government narrower slices of regulatory power. Everyone agreed, for
instance, that the liberty of the press encompassed at least the common-law
rule against press licensing. Americans also prized the right to a general
verdict in sedition trials—enabling juries to decide questions of law and
fact—and the right to present truth as a defense. Based largely on
natural-rights principles, the Founders further rejected governmental authority
to punish well-intentioned statements of one’s thoughts absent direct injury to
others.45 But this principle did not extend to speech
designed to mislead or harm others, nor is there evidence that it offered
protection for what we now call “expressive conduct.”46 In these limited ways, speech and press
freedoms were narrow in scope but strong in their legal implications. And the
legal dimensions of expressive freedom reveal how the Founders sometimes
treated speech and press freedoms as distinct, with press freedom encompassing
only the legal rights of printing-press operators.

The claims made in the previous two paragraphs—developed further in
Part II—simply describe a historical system of thought that Founding Era
elites widely embraced. This Article does not attempt the impossible task of
uncovering how every American actually thought about expressive freedom.
Consequently, the discussion of “original meaning” in Part III aims to
recover how Founding Era elites understood (where we have direct evidence), or
would likely have understood (where we lack direct evidence), the Speech and
Press Clauses of the First Amendment.47 But this Article has little to say about
the views of Americans who were unfamiliar with the underlying principles of
social-contract theory.48

The interpretive relevance of my historical claims is therefore
contingent. Scholars using some other methodology might propose an alternative
understanding of the First Amendment as the correct
meaning at the time of the Founding.49 This Article cannot contest that claim because,
as historical scholarship, it does not take any position on what made a
constitutional interpretation “correct.”50 Rather, it argues that Founding Era elites widely
embraced a particular system of thought and that this system of thought
undergirded how those elites wrote and originally understood the First
Amendment.

B. Implications for Modern Doctrine

Shifting from the perspective of a historian to that of a modern
constitutional interpreter, however, it might be reasonable to assume that
elite views suffice to show what now counts
as an “original meaning.” After all, the historical evidence that scholars and
judges routinely use in modern constitutional interpretation consistently
reflects the perspectives of elites.51

So what relevance does this history have today? Most judges and
constitutional scholars think that Founding Era evidence does and should matter
when interpreting the Constitution.52 On this assumption, accounting for the original
meanings of speech and press freedoms would have profound consequences for
First Amendment theory and doctrine.

In terms of its consequences for theory, history undermines the notion
that the First Amendment itself embraces a particular rationale for protecting
expression. Such theories dominate modern debates.53 The meaning and scope of the First Amendment,
scholars usually posit, depend on why the
Constitution singles out speech and
press freedoms.54 Some theories emphasize republican government,55 others the marketplace of ideas,56 and still more the autonomy of individuals.57

Viewed historically, however, the First Amendment did not enshrine a
particular rationale for expressive freedom. To be sure, the men who drafted
and ratified the First Amendment had various reasons for why they valued
expression.58 And when it came time to apply the Speech and Press Clauses, various theories of expressive
freedom could inform an assessment of the public good. But these theories were
not themselves baked into the First Amendment.

Recovering the history of expressive freedom also has potentially
dramatic consequences for legal doctrine. Worth highlighting, yet again, is the
“utter differentness and discontinuity of the past.”59 Indeed, modern speech doctrine, which
emerged in the twentieth century, bears almost no resemblance to
eighteenth-century judicial decisions.60 And the Founders certainly did not envision
courts crafting legal rules to prohibit speech-suppressing legislation that
judges viewed as contrary to the public good.61 In that sense, modern doctrine is fundamentally
inconsistent with Founding Era law.

For originalists with a narrow conception of the judicial role,62 this variance either calls for a radical
dismantling of speech doctrine, or it requires a concession that precedent has
displaced original meaning.63 A huge swath of modern case law, after all, falls
outside of the First Amendment’s original legal ambit, including its ban on
prior restraints and its protection for well-intentioned statements of one’s
thoughts. If an originalist wanted First Amendment doctrine to track Founding
Era judicial reasoning, the Supreme Court’s decisions in Texas v. Johnson,64
Boy Scouts of America v. Dale,65Citizens
United v. FEC,66 and Snyder v. Phelps,67 among many, many others, would likely have
to go.68

But other originalists argue that judges are empowered, or even
duty-bound, to give concrete meaning to underdeterminate constitutional
provisions.69 If one accepts this view, then modern law might
still comport with original meaning. For instance, a natural-rights reading of
the First Amendment would require the government to act for reasons that
promote the public good, and modern doctrine can perhaps be understood, or
justified, as prophylactic rules that help ferret out illicit motives.70 To be sure, these judicial efforts bear little
resemblance to anything that the Founders themselves would have endorsed. But
they can still be seen as a way of implementing
the original concepts of speech and press freedoms using modern doctrinal
tools.71 And it is to those historical concepts
that we now turn.

II. natural rights at the founding

When James Madison proposed constitutional amendments in 1789, he noted
that his draft included “natural rights, retained—as Speech,
Con[science].”72Indeed, eighteenth-century writers often
identified speech as “a natural Right, which must have been reserved, when Men
gave up their natural Rights for the Benefit of Society.”73But what were natural
rights?

Section II.A explores the general eighteenth-century meaning of natural
rights. In short, natural rights shaped how the Founders thought about the
structure and purposes of government—ensuring that the government could
restrain natural liberty only to promote the public good and only with the
consent of the people. But these “rights” (including the natural right of
speaking, writing, and publishing) generally were not determinate legal
privileges or immunities.

Since natural rights were subject to governmental regulation, we might
wonder why the Founders bothered amending the Constitution to include any of
them.74 Indeed, some Federalists made exactly this
argument when opposing an enumeration of rights. The purpose of declaring rights,
John Jay explained, was to establish that “certain enumerated rights belonged
to the people, and were not comprehended in the royal prerogative.”75 Under a
republican government, however, all legislative power was exercised by elected representatives, thus obviating any need toenumerate naturalrights.76 Though puzzling today, Jay’s argument had
considerable merit. Moreover, even among those who
advocated for enumerating rights, many thought that declarations were
hortatory, serving as a reminder, both to the people and to their government,
of the reasons for instituting government and of the terms of the social
contract and constitution.77

Nonetheless, as Sections II.B and II.C demonstrate, the Founders often
referred to certain rights, including speech and press freedoms, in a more
legalistic way. Enumerated constitutional rights were “exceptions” to
legislative authority, James Madison explained to Caleb Wallace in 1785.78 This would have been quite a strange comment if
Madison were alluding to liberty that could be regulated to promote the public
good. Others called for a bill of rights so that a “Check will be placed on the
Exercise of . . . the powers granted.”79 Indeed, Thomas Jefferson claimed that
enumerating rights would put a “legal check . . . into the hands of the
judiciary,”80 even though American elites broadly agreed that
judges had no business resolving cases based on judicial assessments of the
general welfare.81

In fact, speech and press freedoms had assumed greater determinacy in
two respects. First, as explained in Section II.B, the Founders recognized an
inalienable natural right to express
one’s thoughts, sometimes described as the “freedom of opinion.” Second, as
shown in Section II.C, American elites widely embraced an assortment of
common-law rules, including a ban on press licensing, that offered more
determinate legal protections for expressive freedom.82 In this way, speech and press freedoms were
legally distinct, with the latter referring only to the customary legal rules
that protected printing-press operators. Finally, Section II.D concludes with a
discussion of the contested relationship between natural rights, inalienable
natural rights, and the common law.

A. Natural Rights and Expressive Freedom

The intellectual foundation of Founding Era constitutionalism was
social-contract theory.83 Essentially, the theory was a thought experiment
designed to reveal the proper scope and distribution of political authority. It
began by positing a world without government, commonly known
as a “state of nature,” in which individuals had only “natural rights.” The
theory then explored why people in this condition would choose to organize
politically.84

Natural rights were any
capacities that humans could rightly exercise on their own, without a
government. (Positive rights, by contrast, were defined in terms of
governmental action or inaction.) Consequently, natural rights encompassed
nearly all human activities, sometimes summarized as a right to liberty or a “right to act.”85More typically, however, natural-rights
rhetoric developed around particular controversies. The natural rights to conscience and self-defense were part of the
eighteenth-century lexicon, for instance, while other aspects of natural liberty, like eating and sleeping, were largely unmentioned.86

Without recognizing this broader natural-rights discourse, scholars
often view the freedom of speech as a term of art that originated with the
legislative privilege of speech and debate,87 or they conclude
that “freedom of speech . . . had little history as an
independent concept when the first amendment was framed.”88 For the Founders, however,
mentioning a “freedom to do something” naturally alluded to natural rights,
without any need for further clarification or consistent terminology.89

Not surprisingly, then, the Founders invoked the
natural right of expressive freedom in all sorts of ways. References to the
freedom of speaking, writing, and
publishing seem to have been the most common,90 probably because that phrasing
appeared in the Pennsylvania Constitution of 1776 and the Vermont Constitution
of 1777.91 In the committee that revised
Madison’s proposed Bill of Rights, for instance, one draft mentioned “certain
natural rights which [we] retained,” including the right “of [s]peaking,
writing and publishing . . . with decency and freedom.”92But in the course
of discussing natural rights, contemporaries also mentioned the “right to
speak,”93 “[t]he right of publication,”94“the natural right of free utterance,”95 the “liberty of discussion,”96 “the liberty of the tongue,”97 the “exercise of . . .
communication,”98 and so forth.

Eighteenth-century commentators sometimes referred to “the liberty of the press” as a
natural right, too.99 “Printing,” after all, was “a more extensive and
improved Kind of Speech.”100 Some Founders distinguished the freedom of
publishing, as a natural right, from
the freedom of the press, as a
common-law rule against press licensing.101(In
eighteenth-century English, “the press” was a reference to printing; the term did not refer to journalists until the nineteenth
century.102) But the use of
this terminology was fluid, and Founding Era discussions of press freedom often
alluded to natural-rights concepts.103 Some writers even equated “the Liberty of the
Press” with “the Liberty of publishing our Thoughts in any Manner, whether by
Speaking, Writing or Printing,” thus treating speech and press freedoms as
synonymous.104

Recognizing that expressive freedom was a natural right, however, is
just the beginning. We also need to consider what that classification meant in
terms of limits on governmental power. And that issue turned on two inquires: first, the scope of pre-political
natural liberty, and, second, the
extent to which individuals surrendered control of that liberty upon entering
into a political society. As we will see, the Founders defined pre-political
natural rights in two distinct ways, but this difference ended up being of
little practical significance because of a comparable divergence over how much
natural liberty individuals surrendered when leaving the state of nature.

In terms of the scope of natural rights, the Founders universally
accepted that pre-political natural liberty was circumscribed by natural law.105At a minimum, natural
law required that individuals not interfere with the natural rights of others.106 There was no natural right to assault
others, for instance, because assault interfered with the natural right of
personal security. Viewed in this way, natural rights could be roughly
understood as human liberty to act unless those acts directly harmed others.

But some Americans, informed by David Hume’s view that humans are
inherently sociable,107 defined natural
law in terms of social obligations, too. “Man, as a being, sociable by the laws
of his nature,” Vermont jurist Nathaniel Chipman observed, “has no right to
pursue his own interest, or happiness, to the exclusion of that of his fellow
men.”108 James Wilson echoed this theme in his law
lectures, explaining that natural law requires individuals to avoid injury,
selfishness, and injustice.109 Thus, Wilson explained, every person can act “for the accomplishment of those purposes, in
such a manner, and upon such objects, as his inclination and judgment shall
direct; provided he does no injury to
others; and provided some publick interests do not demand his labours. This right is
natural liberty.”110

At the next stage of social-contract theory, the Founders imagined that individuals—recognizing the deficiencies of a state of nature—would unanimously agree to form apolitical society (or body politic) under a social contract (or social compact).111 “The body-politic
is formed by a voluntary association of individuals,” the Massachusetts
Constitution of 1780 characteristically declared, and “is a social compact, by which the whole people covenants with each
citizen, and each citizen with the whole people, that all shall be governed by certain laws for
the common good.”112 Creation of a body
politic, the Founders imagined, then set the stage for another pact, the constitution, in which the people vested power in a government by majority consent.113

Elites widely agreed about the essence of the social contract—namely,
that the political society should protect natural liberty and should limit
freedom only to promote the public good.114 And the Founders generally understood this
concept of the public good in an aggregate, collective sense, embracing the
“safety and happiness of society,” as Madison put it.115 (A slew of interchangeable terms referred
to the same idea, including “collective interest,” “common good,” “general
utility,” “general welfare,” “public interest,” and so forth.116) In the end, this framework prioritized
the interests of the whole society over narrower private interests. The common
good, the Founders repeatedly implored, often required individual sacrifices.117 At the same time, however, “respect for
the public interest meant that lawmakers had to consider everyone’s interests,
and not merely those of particular individuals or factions.”118

But while largely in agreement on substance, the Founders spoke in a
confusing assortment of ways about the retention of natural rights. The most
common phrasing was, as William Blackstone put it, that “every man, when he
enters into society, gives up a part
of his natural liberty.”119 Meanwhile, others talked about it being
“necessary to give up [natural] liberty” entirely,120 or at least necessary to “surrender[] the
power of controuling . . .
natural alienable rights.”121 Still more insisted that in forming a
republic, “the people surrender nothing.”122

This dizzying array of statements—that individuals retained some, all,
or none of their natural liberty—has created an extraordinary amount of
confusion among scholars.123 And it would seem to indicate substantial
differences of opinion among the Founders about the scope of their natural
rights. In truth, however, the disagreement was semantic, not substantive,
because competing views about the terms of the social contract mirrored the
competing views about the scope of pre-political natural rights.

For those who viewed natural rights as inherently circumscribed by a
concern for the general welfare, individuals could retain all of their natural liberty without creating any conflict with
“the due exercise of the powers of government, for the common good.”124 In 1816, for instance, Thomas Jefferson wrote
that “the idea is quite unfounded, that on
entering into society we give up any natural right.”125 But Jefferson clarified that these natural
rights were limited not only by a prohibition on “commit[ing] aggression on the
equal rights of another” but also by “the natural duty of contributing to the
necessities of the society.”126 Consequently, by incorporating social
duties into natural law, no conflict arose between the preservation of natural
rights and the exercise of governmental powers to promote the public good.127 “To give up the performance of any action,
which is forbidden by the laws of moral and social nature,” Nathaniel Chipman
insisted, “cannot be deemed a sacrifice.”128

This is not to say that natural rights were identically defined after
the formation of a political society. Some natural rights, Chipman explained,
“to render them universally reciprocal in society, may be subjected to certain modifications.”129 Yet, these rights, he insisted, “can never
justly be abridged,” meaning they
could not “suffer any dim[i]nution.”130 This refrain was especially familiar with
respect to property rights. Many people “consider property as a natural right,”
James Wilson noted, but one that “may be extended or modified by positive
institutions.”131 Accordingly, as Wilson explained:

[B]y the municipal law, some things may be
prohibited, which are not prohibited by the law of nature: but . . .
every citizen will gain more liberty than he can lose by these prohibitions .
. . . Upon the whole, therefore, man’s natural liberty, instead of
being abridged, may be increased and
secured in a government, which is good and wise.132

A natural right that could not be modified, by contrast, was an aspect of
natural liberty over which the government simply had no authority.133

For those who thought that individuals gave up some of their natural liberty in a social contract, however,
retained natural liberty was still regulable so long as those regulations were
in pursuit of the public good and made by a representative legislature.134 As William
Blackstone observed, natural liberty could be “so far restrained by human
laws . . . as is necessary
and expedient for the general advantage of the public.”135Importantly, this
framework did not endorse governmental power to abridge retained natural rights. Rather, it simply recognized that
individuals in a political society assumed certain reciprocal obligations that
did not exist in a state of nature.136 Regard for the public good, in other words, was
always implicit in the retention of natural rights.

In sum, whether inherently limited by natural law or qualified by an
imagined social contract, retained natural rights were circumscribed by
political authority to pursue the general welfare. Decisions about the public
good, however, were left to the people and their representatives—not to
judges—thus making natural rights more of a constitutional lodestar than a
source of judicially enforceable law.137 Natural rights, in other words, dictated who could
regulate natural liberty and why that
liberty could be restricted, but they typically were not “rights” in the modern sense of being
absolute or presumptive barriers to governmental regulation.

Speaking, writing, and publishing were thus ordinarily subject to
restrictions under laws that promoted the public good. The principle that “Speech is a
natural Right . . . reserved,” Thomas Hayter explained, was
consistent with “the Power of Legislators, to restrain every impious, or
immoral Abuse of speech” because “The principal End of every Legislature is the
public Good.”138 Or, as another
writer put it, the “right to speak and act without controul . . . is
limited by the law—Political liberty consists in a freedom of speech and
action, so far as the laws of a community will permit, and no farther.”139

Consequently, even though the Founders broadly acknowledged that
speaking, writing, and publishing were among their natural rights, governmental
limitations of expressive freedom were commonplace. Blasphemy and profane swearing, for instance, were thought to be harmful
to
society and were thus subject to
governmental regulation even though they did not directly interfere with the
rights of others.140 Some states even
banned theater performances because of their morally corrupting influence.141 Although stated
without qualification, and often viewed by modern interpreters as being unconditional,142 natural rights
were always
implicitly qualified, with the scope
of their qualifications often turning on assessments of public policy.

Yet while the Founders broadly agreed that governmental power should be
defined and exercised only to promote the general welfare, they often disagreed
passionately about the details. As Joseph Priestley noted, there was “a real
difficulty in determining what general rules, respecting the extent of the
power of government, or of governors, are most conducive to the public good.”143 And nowhere was this difficulty more
pronounced than the long-running controversy over sedition laws.

Arguments for punishing sedition were straightforward. It was
“necessary for the preservation of peace and good order,” Alexander Addison of
Pennsylvania explained, “to punish any dangerous or offensive writing, which,
when published, shall, on a fair and impartial trial, be adjudged of a
pernicious tendency.”144 Proponents of
this view rejected the argument that narrowly tailored sedition laws would
stifle useful criticisms of government and that counter-speech was sufficient
to prevent lasting harm.145 “It may be said,
that an unrestrained license to publish on the conduct of public men, would
operate as a restraint upon [the government], and thus promote the public
good,” Massachusetts Governor James Sullivan wrote, “but this is not true; an
unrestrained license to publish slander against public officers, would
. . . answer no possible valuable purpose to the community.”146 In fact, some argued that it was even more necessary to punish sedition in a
republic. “In a Republican Government, where public opinion rules everything,”
John Rutledge Jr. insisted during the Federalist effort to reauthorize the
Sedition Act in 1801, “it is all-important that truth should be the basis of
public information.”147

Other eighteenth-century writers, however, argued that punishing
sedition would, in the long run, harm the general welfare, even though sedition
itself was deleterious. “The great object of society—that object for which
alone government itself has been instituted, is the general good,” Elizabeth Ryland Priestley wrote in 1800.148Thus, she
continued, “It may perhaps be urged, and plausibly urged, that the welfare of
the community may sometimes, and in some cases, require certain restrictions on
[an] unlimited right of enquiry: that publications exciting to insurrection or
immorality for instance, ought to be checked or suppressed.”149 Yet “ascertaining the proper boundary of
such restrictions” would be vexing, she observed, and governmental power to
regulate harmful speech, “once conceded, may be extended to every [opinion]
which insidious despotism may think fit to hold out as dangerous.”150 Moreover, as Republicans frequently
argued, fear of being prosecuted might have a chilling effect on useful
criticisms of government.151

Notably, these arguments all relied on contingent judgments about
public policy—not an understanding of natural rights that categorically
permitted or barred governmental efforts to suppress expression, irrespective
of the public good.152 Americans thus offered vastly different visions
of how far expressive freedom should extend (due to differing calculations of
what best furthered the public good) even while sharing the same conceptual understanding of speech and press
freedoms.

Further evidence of the Founders’ conceptual understanding of
expressive freedom comes from their recognition of an equality between speech and press freedoms and, at the same time,
their acceptance of distinct legal
rules regarding oral and written statements. “The freedom of speech of writing
and of printing are on equal grounds by the words of the constitution,” one
commentator observed in 1782, referring to the Pennsylvania constitution.153 As concepts, therefore, the freedoms of speaking,
writing, and publishing were identical, allowing the government to punish only
“the disseminating or making public of falsehoods, or bad sentiments,
destructive of the ends of society.”154 Yet these equivalent principles were
perfectly consistent with broader liability and harsher punishment for written libels. “The reason,” the
commentator explained, was that written statements were “more extended” and
“more strongly fixed,” thus posing a greater threat to public order.155 In short, speech and press freedoms were
equivalent, as natural rights, but the legal implications of these rights
differed.

B. Inalienable Natural Rights and the Freedom of
Opinion

Unlike ordinary natural rights, which were regulable to promote the
public good, certain inalienable
natural rights imposed more determinate constraints on legislative power.156 These rights, Nathaniel Chipman explained,
were aspects of natural liberty that “can never justly be subject to civil
regulations, or to the control of external power.”157 Some writers limited this category to the
freedoms of conscience and thought158 without necessarily including a correlative
liberty to exercise religion or to express thoughts.159 “Opinions are not the objects of legislation,” James Madison succinctly explained to
his congressional colleagues in 1794.160 Few would have disagreed. But by the late
eighteenth century,
Americans widely embraced the idea that the government could not prohibit
well-intentioned statements of one’s thoughts, either.

Opinions were sacrosanct because they were understood to be
non-volitional.161 Unlike “Volition,
or Willing,” John Locke explained,
“in bare naked Perception the Mind
is, for the most part, only passive; and what it perceives, it cannot avoid
perceiving.”162 Consequently, in
Francis Hutcheson’s words, “the Right of private Judgment, or of our inward
Sentiments, is unalienable; since we cannot command ourselves to think what
either we our selves, or any other Person pleases.”163 Or, as Madison put it in his famous Memorial and Remonstrance, “the opinions
of men, depending only on the evidence contemplated by their own minds cannot
follow the dictates of other men.”164 The freedom of opinion was thus, at its core, a freedom against governmental
efforts to punish people for their thoughts. (The Founding Era term “freedom of
opinion” is thus somewhat misleading; the essence of the principle was
protection for non-volitional thoughts.165)

Americans often invoked the freedom to have opinions to defend a correlative freedom to express opinions.166 Among the natural rights that individuals had not
surrendered to government, Thomas Jefferson wrote in 1789, were “the rights of thinking, and publishing our
thoughts by speaking or writing.”167 The inalienability of this liberty was broadly
recognized. All men had a right “of speaking and writing their minds—a right,
of which no law can divest them,” Congressman John Vining observed in January
1791, before the First Amendment was ratified.168 This right, Fisher Ames echoed in
agreement, was “an unalienable right, which you cannot take from them, nor can
they divest themselves of.”169 Any abridgment of that right, he insisted,
would be “nugatory.”170

The freedom to express thoughts, however, was limited to honest statements—not efforts to deceive
others. “The true liberty of the press is amply secured by permitting every man
to publish his opinions,” Pennsylvania jurist Thomas McKean explained in 1788,
“but it is due to the peace and dignity of society to enquire into the motives
of such publications, and to distinguish between those which are meant for use
and reformation, and with an eye solely to the public good, and those which are
intended merely to delude and defame.”171 For that reason, this Article often refers
to a “freedom to make well-intentioned statements of one’s thoughts.” The
Founders, immersed in their own constitutional language, hardly needed such a
periphrastic term; they could simply invoke the “freedom of opinion” or
“freedom of speech.”

Sedition laws were thus facially consistent with the freedom of opinion
when confined to false and malicious speech. “Because the Constitution
guaranties the right of expressing our opinions, and the freedom of the press,”
Federalist John Allen asked rhetorically during the congressional debates over
the Sedition Act, “am I at liberty to falsely call you a thief, a murderer, an
atheist?”172 Answering his
own question, and again treating the First Amendment as guaranteeing “the
liberty of opinion and freedom of the press,”173 Allen implored that “[t]he freedom of the
press and opinions was never understood to give the right of publishing
falsehoods and slanders, nor of exciting sedition, insurrection, and slaughter,
with impunity. A man was always answerable for the malicious publication of
falsehood; and what more does this bill require?”174 Over and over, Federalists emphasized the
requirement of “a false and malicious intention.”175

Opponents of the Adams Administration saw through the Federalist
charade, viewing the Sedition Act as part of “a legislative program designed to
cripple, if not destroy, the Republican Party.”176 Frequent complaints that Federalists had
“countenance[d] a punishment, for mere freedom of opinion,” thus appear
justified.177 Yet in their
more contemplative moments, some Republicans recognized that the Sedition Act
itself fell short of abridging the freedom of opinion. If the law were
perfectly administered, one Virginia editorial noted, “No person . . . would
be the subjects of ruin under this statute, unless they annexed to those
opinions a design that was not pure.”178 Or, as libertarian writer John Thomson
acknowledged, if prosecutions “were not for the publication of opinions, then the Constitution has not been
violated by them.”179

Also notable about the Sedition Act controversy, however, was the
nearly universal acknowledgment by Federalists that well-intentioned statements
of opinion, including criticisms of government, were constitutionally shielded.180 “[I]t is well known,” Alexander Addison
remarked, “that, as by the common law of England, so by the common law of
America, and by the Sedition act, every individual is at liberty to expose, in
the strongest terms, consistent with decency and truth all the errors of any
department of the government.”181 Federalists, in other words, firmly
rejected the long-discredited rule that “no private man can take upon him[self]
to write concerning the government at all.”182 By limiting the Sedition Act to false and
malicious statements, and by providing a truth defense,183 Federalists could reasonably claim fidelity to
this longstanding respect for the freedom of opinion. Indeed, Federalists
sought to renew the Sedition Act in January 1801—with a new administration
poised to take the helm—because the Act, in their view, had “enlarged instead
of abridg[ed] the ‘liberty of the press.’”184

Scholars, however, routinely overlook Federalist support for expressive
freedom. Defenders of the Sedition Act, one author writes, equated “the freedom
of speech and press” with an understanding that “government could restrain
speech post-publication or post-utterance in whatever way it pleased.”185 In fact, not a single Federalist in Congress took
that view. To be sure, many Federalists interpreted the freedom of the press as simply a rule against prior restraints—an
idea that we will turn to next.186 But the First Amendment, as Federalist Harrison
Gray Otis explained, also guaranteed “the liberty of writing, publishing, and
speaking, one’s thoughts, under the condition of being answerable to the
injured party, whether it be the Government or an individual, for false,
malicious, and seditious expressions, whether spoken or written.”187 This was a qualified liberty, of course, and
perhaps inadequate when executed by a partisan administration and partisan
judiciary. But Federalists widely accepted the freedom of opinion, even in the
late 1790s.

Readers may be curious about the scope of the freedom to make
well-intentioned statements of one’s thoughts—whether, for instance, it applied
to certain forms of expressive conduct like flag burning or political
donations. Historical evidence offers no clarion answers, but the principles of
social-contract theory frame the inquiry in a way that disfavors categorical
protection for expressive conduct. To be sure, engaging in expressive behavior
was an innate human capacity, so it was properly understood as falling within
the natural right of expressive freedom.188 But there was little basis for recognizing an inalienable natural right of expressive
conduct. The scope of inalienable rights, after all, depended on whether
individuals were physically capable of parting with certain aspects of natural
liberty and, if so, whether collective control of that liberty would serve the
public good.189 Some expressive conduct, like instinctive smiles,
surely fell on the side of inalienability. But when expressive conduct caused
harm and governmental power to restrict that conduct served the public good,
there is no reason to think that the freedom of opinion nonetheless immunized
that conduct.

Consequently, although the freedom of opinion was fixed in some
respects—allowing individuals to criticize the government in good faith, for
instance—determining its scope called for the same policy-driven analysis that
characterized the Founders’ general approach to natural rights. In short,
outside of the core protection for well-intentioned statements of one’s thoughts,
the boundaries of the freedom of opinion depended on political rather than
judicial judgments.

C. Common-Law Rights and the Freedom of the Press

In addition to inalienable natural
rights, state declarations of rights in the 1770s and 1780s also included
numerous fundamental positive rights, like the right to trial by jury and the
rule against ex post facto laws. Unlike “natural liberty . . .
retain[ed],” one Anti-Federalist noted, fundamental positive rights were
“particular engagements of protection, on the part of government.”190 These were rights defined in relation to
governmental authority. And what made them “fundamental” was an acceptance of
their inviolability, usually based on their recognition in the social contract
or constitution.191 In short, these
rights were, as Thomas Jefferson explained in 1790, “certain fences which
experience has proved particularly efficacious against wrong, and rarely
obstructive of right.”192 Interestingly,
Jefferson classified the freedom of the press as a fundamental positive right.193

Scholars typically assert that the freedom of speech and the freedom of
the press were equivalent,194 and, as we have seen, those concepts were
equivalent as natural rights.195 Yet in the context of enumerated bills of
rights, discerning the meanings of these freedoms is more complicated and
reveals an important difference between speech and press freedoms.196 The Pennsylvania Constitution of 1776, for
instance, separated the “right to freedom
of speech, and of writing, and publishing” from “the freedom of the press.”197 That split strongly suggests a distinction in
meaning. And Jefferson’s letter suggests an intriguing explanation: the term
“freedom of the press” could denote a particular fundamental positive right.

The content of this right was widely known. “The liberty of the press,”
William Blackstone had famously
declared, “consists in laying no
previous restraints upon publications, and not in freedom from censure for
criminal matter when published.”198And without a
governmental censor, local juries rather than royal agents controlled how far publishing could
be restricted. “The liberty of the press, as established in England,” Jean Louis de
Lolme wrote in 1775, effectively meant that courts considering libels against
printers “must . . . proceed by the Trial by Jury.”199

Americans, and
particularly those with legal training, frequently echoed these ideas. “[W]hat is meant by
the liberty of the press,” James Wilson
observed during the 1787 ratification debates, “is, that there
should be no antecedent restraint upon it; but that every author is responsible
when he attacks the security or welfare of the government or the safety,
character, and property of the individual.”200Others mentioned
the importance of empowering juries to determine the proper bounds of
expressive freedom. “[S]hould I be unjustly
accused of [sedition],” Virginia lawyer Alexander White remarked, “the trial by
a jury of my countrymen is my security—if what I have said or wrote corresponds
with their general sense of the subject, I shall be acquitted.”201

In sum, although many of the Founders discussed press freedom as a
natural right, it also had a readily available meaning as a fundamentalpositive right against press licensing, thus empowering juries to
determine the proper scope of expressive freedom.

D. Nature and Law

The notion that speech and press freedoms referred to natural rights, inalienable natural rights, and fundamental
positive rights may appear confused or even contradictory. In the eighteenth
century, however, these rights were closely intertwined.202 The fundamental positive rights embodied
in common law informed understandings of natural rights, and vice versa.

The common law did not directly recognize natural rights as a set of
positive rights. Natural rights, after all, were simply the liberty that humans
would enjoy in a state of nature, bounded by the dictates of natural law. In
contrast to positive rights, they were not defined in terms of governmental
action or inaction. When a constitution protected certain natural rights
against abridgment, however, it became important to determine the scope of
retained natural liberty. And to assist with this task, the Founders naturally
turned to positive law, and particularly the common law.

The common law was probative, in part, because it helped define the
natural-law boundaries of natural rights.203 Natural law, we must recall, was not a
finely tuned set of legal rules. Rather, it embodied the dictates of reason and
justice. “We discover it,” James Wilson explained, “by our conscience, by our
reason, and by the Holy Scriptures.”204 Not surprisingly, therefore, the Founders
recognized considerable underdeterminacy about what natural law required.205 “[W]hoever expects to find, in [reason,
conscience, and the Holy Scriptures], particular directions for every moral
doubt which arises,” Wilson cautioned, “expects more than he will find.”206

In day-to-day practice, then, natural law itself provided little
guidance about how to resolve difficult legal questions. Instead, lawyers and
judges used a system of customary legal rules known as the common law. Yet the
legal system operated on the assumption—or at least the fiction—that the common
law and natural law were in harmony.207 “The common
law,” Alexander Addison characteristically observed, “is founded on the law of nature and the revelation of God.”208 Consequently, the common law could help determine
the proper boundaries of natural liberty. Governmental powers recognized at
common law were presumptively acceptable, while common-law limits on
those powers (such as the rule against prior restraints) recognized
presumptively unjustified abridgments of natural rights.

Moreover, for those who viewed social obligations as stemming from
common consent rather than from natural law, the common law helped delineate
the scope of those obligations. The common law, after all, had the presumptive
consent of the people over an extended period. “[L]ong and uniform custom,”
English jurist Richard Wooddeson explained, “bestows a sanction, as evidence of
universal approbation and acquiescence.”209 Though certainly not immune to change,210 the common law at least presumptively comported
with the reciprocal obligations that individuals had assumed in the social
contract. In short, customary positive law helped reveal the proper scope of
natural liberty.

At the same time, Americans sometimes used natural-law reasoning to
shape their understanding of positive law. This approach reflected the
prevalent view that positive law should reflect and conform to natural law.
“[M]unicipal laws are under the control of the law of nature,” Wilson noted in
his law lectures, meaning that natural law was superior to positive law.211 Because of its underdeterminacy,
natural-law reasoning was typically reserved within legal circles for resolving
ambiguities in the common law or statutory law; judicial assessments of natural
justice could not displace positive law.212 Among the laity, however, the priority of
natural law sometimes prompted calls for an abandonment of legal pedantry. “It
is our business to do justice between the parties,” John Dudley of New
Hampshire opined about the jury’s role, “not by any quirks of the law out of
Coke or Blackstone, books I have never read, and never will, but by common
sense and common honesty as between man and man.”213 Some Republican lawyers took a similar
view. The meaning of Virginia’s press clause, lawyer George Hay opined, “presents
a great constitutional question, the solution of which depends, not on cases
and precedents furnished by books, but on principles whose origin is to be
traced in the law of nature, and whose validity depends on their tendency to
promote the permanent interests of mankind.”214

Not surprisingly, then, forceful disagreements emerged about the extent
to which the common law defined the scope of natural rights.215 During the ratification debates, for instance,
lawyers like James Wilson, Rufus King, and Alexander White equated press
freedom with the common-law rule against press licensing.216 A decade later, when Republicans attacked
the Sedition Act of 1798 as violating the freedom of the press, Federalist
lawyers again turned to the familiar terrain of legal authority. “By the
freedom of the press,” jurist Alexander Addison insisted, the Press Clause
“must be understood to mean the freedom of the press as it then existed at
common law in all the states.”217

For Americans with less elitist inclinations, however, determining the
scope of natural rights was not exclusively within the ken of professionally
trained lawyers. James Madison’s famous Virginia Report of 1800, for instance,
made arguments from “plain principle, founded in common sense, illustrated by
common practice, and essential to the nature of compacts” to wage an extended
attack on Federalist reliance upon the common law.218 It would be a “mockery” to confine press freedom
to a rule against prior restraint, Madison implored, because post-publication
punishments would have the same effect of suppressing expression.219 Moreover, practical experience showed that
American printers enjoyed a “freedom in canvassing the merits and measures of
public men, of every description, which has not been confined to the strict
limits of the common law.”220 It was thus “natural and necessary,”
Madison concluded, that press freedom in the United States went beyond the
confines of English common law.221

Scholars, it is worth cautioning, have overstressed this part of the
Virginia Report. Madison, whose views on expressive freedom were more liberal
than those of his colleagues, plainly identified these observations as being
“for consideration only,” without, “by any means, intend[ing] to rest the
[constitutional] question on them.”222 (The Virginia Report actually rested its
constitutional argument on the First Amendment’s supposed denial of federal
power to impose any restrictions on
printers.)223 Nonetheless,
Madison’s mode of reasoning in this political dictum reflected an important
strand of Republican thought grounded in a natural-rights view of expressive
freedom.

III. explicating the first amendment

Now
that we have a grasp on how the Founders talked about rights in general, and
about speech and press freedoms in particular, we can more closely evaluate the
original meanings of the First Amendment.

This
Part begins with an analysis of the ratification debates and drafting of the
First Amendment. It draws two principal conclusions. First, the impetus for a bill of rights was a desire to enumerate
well-recognized rights, not create new ones. Consequently, historical context
strongly supports the view that the Speech and Press Clauses incorporated the
meanings of expressive freedom discussed in Part II. Second, although originalist scholarship tends to treat speech and
press freedoms as equivalent, the ratification debates reinforce that the
Founders often referred to these ideas distinctly, particularly when mentioning
press freedom as a fundamental common-law right.

Then,
Section III.B synthesizes the evidence in Part II and Section III.A to assess
the most likely original meanings of the Speech and Press Clauses. It argues
that the Speech and Press Clauses recognized both abstract principles and
concrete legal rules that were grounded in Founding Era rights discourse. The
Section then responds to some competing accounts of the First Amendment’s
original meaning.

A. Enumerating Expressive Freedoms

The
Constitution drafted by the Philadelphia Convention famously lacked a
declaration of rights.224This omission quickly became a favorite point of attack for the opponents of ratification, commonly known as the Anti-Federalists.225 Especially
dangerous, Anti-Federalists insisted, was unchecked congressional power under the Necessary and Proper Clause.226 “The powers,
rights, and authority, granted to the general government by this constitution,”
Brutus explained, “are as complete, with respect to every object to which they
extend, as that of any state government.”227Consequently, a federal declaration of rights was every bit as
necessary as state declarations in order to
restrict the means of federal power.

Anti-Federalists often
focused their criticisms on the lack of
protection for the freedom of the press. But their references to press freedom were
usually cursory, with no elaboration about what the term meant or what a
declaration in its favor would accomplish.
Often Anti-Federalists
simply pointed out numerous ways that the
federal government could regulate printers—whether through “the trial of libels, or pretended libels against the United States,”228taxes on
newspapers,229 the copyright
authority,230 or federal power over the capital district.231 Importantly, these worries often went beyond mere
concern about prior restraints,232 but
Anti-Federalists rarely suggested how an enumerated guarantee of press freedom would constrain federal authority.233

Notably, the freedom of speech played almost no role in the public
jousting that occurred in newspapers, pamphlets, and state ratification
conventions.234 Anti-Federalist
fears about unenumerated rights, it turns out, usually focused on positive
rights that imposed more determinate limits on governmental authority.235 (Scholars, by contrast, often describe the
freedom of speech as an important Anti-Federalist issue, but their evidence
notably mentions only the liberty of the press, again highlighting the
scholarly conflation of speech and press rights.)236 Amidst the wide-ranging and creative arsenal of
Anti-Federalist arguments, concern about the freedom of speech was
conspicuously missing.

In response to Anti-Federalist admonitions about the liberty of the press, Federalists generally made two
related arguments. First, many explained that bills of rights were merely
declaratory of pre-existing rights and were therefore legally unnecessary.237 It was “absurd to construe the silence . . . into
a total extinction” of the press right, John Jay insisted, because “silence and
blank paper neither grant nor take away any thing.”238 The Virginia and New York ratification
conventions later passed declaratory resolutions making the same point.239 Indeed, many Federalists thought that
fundamental positive rights were recognized in the social contract,240 obviating any need for subsequent
enumeration, just as modern legislation hardly needs to specify that it
operates only within constitutional boundaries.

Second, Federalist denials of authority to abridge the liberty of the press relied on the lack
of any enumerated power that would justify a licensing regime. In response to
the Anti-Federalist argument that the federal
government might abridge the freedom of the press under the taxing
power, for instance, Alexander Hamilton asked in Federalist No. 84, “why declare that things shall not be done
which there is no power to do?”241But
Hamilton, unlike some of his Federalist colleagues,242 was not rejecting all federal
power over printers. Rather, he clarified, “declarations . . . in favour of the
freedom of the press” were not understood to be “a constitutional impediment to
the impositions of duties upon publications.”243

When it came to natural rights, Federalists used a similar tack. Rather
than denying any federal authority over speech, Federalists insisted that
protections for natural liberty were superfluous under republican governments.
As we have seen,244 that argument
had considerable merit. In some sense, the people in a republic retained every aspect of natural liberty because
no natural rights were surrendered to an unaccountable monarch. Enumerating
retained natural rights, Federalists therefore concluded, would be pointless.
In republics, Alexander Hamilton explained in Federalist No. 84, “the people surrender nothing, and as they
retain every thing, they have no need of particular reservations.”245

As the ratification
contest dragged on, however, some Federalists
gradually perceived a need for amendments to quell Anti-Federalist opposition.246 Declaring rights,
they realized, would help undercut Anti-Federalist calls for broader reforms.247Some men,
including Thomas Jefferson and James Madison, also came to recognize merit in the Anti-Federalist arguments.248Although Congress was
confined to enumerated powers, Madison explained in his speech introducing a
draft of amendments to the House of Representatives that
it “has certain discretionary powers with respect to the means, which may admit
of abuse to a certain extent, in the same manner as the powers of the state governments under
their constitutions may to an indefinite extent.”249

Madison was not
admitting that Congress could properly abridge
customary rights. Nonetheless, Congress had power under the Necessary and
Proper Clause “to fulfil every purpose for which the government was
established,” and it was “for them to judge of the necessity and propriety to
accomplish those special purposes.”250Madison had previously criticized
declarations of rights as mere “paper barriers,” but in his congressional
speech he justified them as having “a
tendency to impress some degree of respect for [rights], to establish the public opinion in their favor, and rouse the
attention of the whole community.”251Moreover, he
noted, a written guarantee would help embolden judges to uphold their legal
duty to enforce certain rights.252In short, an enumeration of rights might be useful after all.

Madison’s initial proposal for constitutional recognition of expressive
freedom was divided in two parts: “The people shall
not be deprived or abridged of their right to speak, to write, or to publish
their sentiments; and the freedom of the press, as one of the great bulwarks of
liberty, shall be inviolable.”253His notes suggest
that he also remarked to his colleagues that speech and conscience were among the
“natural rights, retained.”254 By contrast, his separation of
the right of speaking, writing, and publishing from the freedom of the press
suggests a positive-law connotation of press freedom.255

This dual structure became clearer within the House Committee of Style when Roger Sherman proposed dividing these clauses
into separate articles. In one article, he addressed “certain natural rights
which are retained,” including the right “of Speaking, writing and publishing
. . . with decency and freedom.”256 Six articles
later, he presented a two-part ban on licensing rules: “Congress shall not have power to grant any monopoly or
exclusive advantages of Commerce to any
person or Company; nor to restrain the liberty of the Press.”257Notably, only
Sherman’s proposed press clause, surely meant as a rule against press
licensing, was framed as a categorical denial of congressional power.

For unknown reasons, but probably just for sake of brevity, the Committee of Style shortened Madison’s proposal to read: “The freedom of speech, and of the press,
. . . shall not be infringed.”258 And, with various revisions accepted in
the Senate, the third proposed amendment eventually read: “Congress shall make
no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.”259 The drafters of the final version of the
amendment thus, perhaps unwittingly, stripped away the earlier textual
indication that speech and press freedoms had distinct meanings.

B. Original
Meanings

So, what did the Speech and Press Clauses originally mean? A detailed
answer to that question would require an account of what it means for a clause
to have a “meaning,”260 both conceptually and in terms of evidentiary
thresholds. And the Founders often disagreed about methods of constitutional
interpretation, so assigning a definitive “original meaning” to any
constitutional clause may require contestable methodological choices.261 Rather than venturing down that path, this
Section simply points out a range of possibilities that—while different in some
respects—display a substantial degree of agreement among Founding Era elites.
In doing so, it focuses on conceptual meanings
of the Speech and Press Clauses, not their precise doctrinal details. This
synthesis suggests that the best account of the First Amendment’s meaning is
likely one rooted in a multifaceted view of expressive freedom, recognizing the
interplay of natural rights, inalienable natural rights, and fundamental
common-law rights. Importantly, this account reveals, at least in some
respects, distinct meanings of the Speech and Press Clauses.

Because expression was a natural right, one possibility is that the
Speech and Press Clauses originally referred exclusively to ordinary natural rights that were fully regulable to
promote the public good.262 Under this view,
customary protections for speech and press freedoms would likely suggest the proper bounds of natural
liberty—perhaps even directing judges to interpret statutes “equitably” to
avoid conflicts with these longstanding rules—but without imposing any fixed,
judicially enforceable restraints on legislative power.263 The Speech and Press Clauses, in other words,
might have had legal implications without
constitutionally ossifying any particular set of legal rules.

This is a plausible view. Speaking, writing, and publishing were
liberties that people could exercise without governmental intervention, and the
Founders thus viewed these freedoms as being among their natural rights. This
liberty, moreover, was circumscribed by social obligations—either imposed by
natural law or voluntarily assumed in a social contract—and therefore only
restrictions of expression beyond those
that promoted the public good were “abridgments” of natural rights.264 Consequently, as Republican lawyer George
Hay summarized in 1799, a natural-rights understanding of the First Amendment
would “amount precisely to the privilege of publishing,” as well as speaking
and writing, “as far as the legislative power shall say, the public good
requires.”265

Other Founding Era commentary supports the possibility that the Speech
and Press Clauses referred exclusively to natural rights. Not all aspects of
Founding Era bills of rights, we must recall, had determinate meanings. Indeed,
some declarations of rights announced principles that were, as Alexander
Hamilton disparagingly put it in Federalist
No. 84, “aphorisms” that “would sound much better in a treatise of ethics
than in a constitution of government.”266 Provocatively, and perhaps disingenuously,
Hamilton insisted that the freedom of the press was so indeterminate that
“whatever fine declarations may be inserted in any constitution respecting it,
must altogether depend on public opinion, and on the general spirit of the
people and of the government.”267

Nonetheless, the Founders often described declarations of rights as
supplying stricter limits on legislative authority. A bill of rights,
Theophilus Parsons remarked, should specify both “unalienable natural rights,”
over which “the supreme power hath no control,” and a set of fundamental
positive rights, “also unassailable by the supreme power.”268 Indeed, one of James Madison’s principal
rationales for a bill of rights in 1789 was to limit the “discretionary powers
with respect to the means” of federal
authority.269 If state bills
of rights were useful “for restraining the state governments,” Madison
explained, “there is like reason for restraining the federal government.”270

Viewed in this light, it makes sense to construe the First Amendment as
imposing at least some fixed limits on federal power. There is a compelling
case, for instance, that the Press Clause codified at least a positive right
against press licensing, thus putting juries in charge of restricting speech.271 Meanwhile, the freedom of speaking, writing, and publishing—likely invoked
in the Speech Clause—shielded from regulation any well-intentioned statements of one’s thoughts (subject, of course, to the
natural-law proscription against abridging the rights of others).272 As with most other enumerated rights,
these principles constrained the means
that the federal government could employ when exercising its other powers. And
this positive-rights dimension of the Speech and Press Clauses reveals an
important distinction in their meanings.

Following this train of thought, perhaps the Speech and Press Clauses
referred exclusively to these more
determinate customary rules, without directly recognizing a retention of the
broader (but shallower) natural right of expressive freedom. Federalists in the
late 1790s, it turns out, often interpreted the First Amendment in precisely
this way. “By the freedom of the press,” Addison implored, the Press Clause
“must be understood to mean the freedom of the press as it then existed at
common law in all the states.”273

Finally, perhaps the Speech and Press Clauses in the First Amendment
recognized both the natural right of
expressive freedom (in which the Speech and Press Clauses had a common meaning)
and the more determinate customary
protections for expression (in which the Speech and Press Clauses had distinct
meanings). Like the other historical accounts of the First Amendment’s original
meaning, this interpretation recognizes the interplay between natural rights,
inalienable natural rights, and positive law, and it differs only by suggesting
that this full spectrum of rights was incorporated into the Constitution
itself. The First Amendment, on this account, recognized any customary legal
principles that protected speech and the press while also recognizing that,
apart from these rules, Congress was otherwise free to limit expression in
pursuit of the public good (subject, of course, to any other constitutional
constraints). In my view, this account best fits the available historical
evidence, which shows the Founders constantly and fluidly moving between
different notions of speech and press freedoms. Moreover, isolating First Amendment
rights to a particular aspect of Founding Era expressive freedom seems dubious
in light of the Ninth Amendment’s implied reservation of rights.

In sum, it remains debatable whether the Speech and Press Clauses
directly recognized ordinary natural rights, a set of more determinate legal
rights, or both. But because of the fluid relationship between natural rights
and positive rights, all of these possibilities point in basically the same
direction: the First Amendment recognized (either implicitly or outright) the
ordinary natural right of expressive freedom along with (either absolute or
presumptive) protection for a set of customary rules with more determinate
legal meanings.274

Other accounts of original meaning, however, are much less plausible. A
common view is that the “freedom of speech” in the First Amendment was
analogous to the “freedom of speech and debate” mentioned in Article I (and in
various state constitutions).275That freedom was
a separation-of-powers rule, barring
legislators from being punished by the executive or judiciary for their
speeches and activities within the legislative chamber.276 But legislatures could, and occasionally did, punish
their own members at will.277 Based on this supposed genealogy of the freedom
of speech, scholars often conclude that the First Amendment’s protections are
confined to political expression—the
type of speech that typically occurs in legislative assemblies.278

This interpretation of the Speech Clause has a variety of problems.
First and foremost, legislative privilege played basically no role in Founding Era debates about the First Amendment.279This lack of
historical evidence may not bother “intratextualists,” who are known to “draw[]
inferences from the patterns of words that appear in the Constitution even in
the absence of other evidence that these patterns were consciously intended.”280 This Article’s analysis, however, focuses on
historical understandings of speech and press freedoms, not modern textualist
theories. And there simply is no evidence that anybody in the late 1780s
thought that the freedom of speech was directly analogous to, or drew its
meaning from, the legislative privilege of speech and debate.Another difficulty is that the Founding Era right of speaking, writing, and publishing clearly extended to any subject, not just to political matters.281

Other scholars assert that the Speech Clause made speech “not subject
to legislative regulation for the public good” but “nevertheless limited by the
rights of others.”282 Reading the text of the First Amendment in
isolation might support this so-called “libertarian” view. For those Founders
who defined natural rights without regard to social obligations, after all,
restrictions of natural liberty to promote the common good could easily be
understood as “abridgments” of the liberty that had existed in a state of
nature.

Viewed in historical context, however, this “libertarian” interpretation
of the First Amendment is incomplete. To be sure, the Founders thought that the
freedom to make well-intentioned statements of one’s views was an inalienable
natural right, rendering improper any restrictions that did not flow from
natural law. And since the government itself did not possess natural rights that
could be abridged, it was beyond the power of the government to punish speech
that criticized the government in good faith.283 These were important departures from the
view that speech was always regulable in the public interest.

But the freedom of opinion did not encompass all expression.
Individuals who joined together in a social contract, after all, had no reason
to immunize efforts to lie or mislead. Nor did they need to prevent the
government from preserving norms of civility and morality, like rules against
blasphemy and profane swearing. Indeed, the Founders constantly mentioned that
the inalienable right to speak was limited to those who spoke with decency and
truth,284 and state governments routinely and
uncontroversially restricted plenty of speech that did not directly violate the
rights of others.285 Evidence from
the late 1780s and early 1790s provides no indication that the First Amendment
adopted a different understanding of expressive freedom.

Just the opposite, in fact. The Founders widely viewed enumeration as a
conservative project meant to preserve existing rights, not to change
their meaning or scope.286 The proposed
amendments, James Madison informed his congressional colleagues, provided for “simple and acknowledged principles” and not ones
of “a doubtful nature.”287 The purpose of enumeration, in other
words, was to guarantee at the federal level the rights already recognized by
state constitutions and social contracts. Consequently, to the extent that
states could regulate expression without “abridging” reserved natural liberty,
the federal government could properly do so as well.288 The freedom of expression that could not
be “abridged,” in other words, was a liberty qualified by social obligations
that stemmed either from natural law or from the imagined social contract.289

Nor did the First Amendment, as some scholars suggest, elevate speech
to a constitutionally privileged liberty interest to be defended by
free-ranging judicial supervision.290 Founding Era judges, after all, were confined to
defending “marked and settled boundaries” of
governmental authority, disregarding legislation only where constitutional
violations were clear.291 Judges could not
apply jurisprudential concepts “regulated by no
fixed standard” on which “the ablest and the purest men have differed,”292 even when those principles were enumerated
in a written Constitution.293 Judicial applications of the First
Amendment were therefore limited to enforcing customary legal principles,294 even though the concept of expressive freedom, as a natural right, had a far
broader range of potential implications.

Finally, the First Amendment did not comprehensively ban federal
regulations of expression.295 This view became prominent only later in
the 1790s, when Republicans realized that Federalist control of all three
branches of the federal government, combined with the administration’s ability
to choose jurors, threatened their political survival.296 The First Amendment, many Republicans
argued, imposed a “total exemption of the press from any kind of legislative
control,” leaving state common-law suits for abridgments of private rights as
the only permissible limits on
expression.297

Modern proponents of this view find support in the First Amendment’s
opening phrase, “Congress shall make no law.”298 However, a provision that “Congress shall make no law past some threshold”—such as the abridgment of the freedom of speech or
of the press—simply does not suggest a
lack of regulatory power leading up to that threshold. If anything, it implies just the opposite, as Federalist
defenders of the Sedition Act repeatedly pointed out with glee.299

Another amendment passed
by the House of Representatives in 1789 reinforces that the First Amendment did
not withdraw all authority regarding speech and the press. In addition to
declaring that “[t]he Freedom of Speech, and of the Press . . . shall
not be infringed”—a rule applicable only to the federal government—the House passed a proposal that “[n]o State shall infringe . . . the
freedom of speech, or of the press.”300 If infringements of speech and press freedoms arose from any controls over expression, then this proposal would have barred state laws
against libel, defamation, conspiracy, threats, profanity, blasphemy, perjury,
sedition, and so forth. All of these laws, after all, suppress various
forms of communication. But no evidence suggests that the
House of Representatives was radically proposing to bar any federal or state
limits on expression.301Rather, the First Amendment—just like its state-restraining
counterparts—left ample room for the government to regulate speech in promotion
of the public good, so long as it respected customary legal protections as well.

IV. using history

How might this history inform modern constitutional interpretation?
Most judges and scholars incorporate history into their interpretative method
in some way.302 But uses of history vary substantially.
Originalism in particular now comes in many forms, and the Founding Era history
of speech and press freedoms might inform originalist analysis in a range of
ways.

One option is simply to return wholesale to a Founding Era perspective,
recognizing that judges are not well positioned to evaluate whether a
legislature has acted in good faith or whether restrictions of speech promote
the public good.303 In short, this approach would call for
dismantling a huge swath of modern free-speech law. For instance, the Supreme
Court’s foundational decision in New York
Times v. Sullivan,304 which makes it
harder for public officials to sue for defamation, conflicts even with the
libertarian strand of Founding Era thought.305 And while the Founders viewed well-intentioned
statements of one’s thoughts as shielded from regulation, there is no indication
that this principle would have extended to, say, donations to a political
candidate.306 Even assuming
that giving money to a campaign is expressive, or is an exercise of the natural
right to freedom of association, this activity was among the countless aspects
of natural liberty subject to regulations that promote the general welfare.

Of course, many who use history in constitutional interpretation also
accept the authority of precedent and may thus perceive modern speech law as
too entrenched to be properly overruled.307 Even under this view, Founding Era history may
still have “gravitational force” in resolving ambiguities in modern doctrine.308 Judges, for instance, often use
conflicting definitions of what it means for a speech regulation to be “content
based,” and a historically grounded approach may help resolve contested issues
of this sort.309

If we set aside Founding Era conceptions about the judicial role,310 however, then modern doctrine is far
easier—though perhaps still difficult—to justify on historical terms. In
particular, a natural-rights reading of the Speech Clause would require the
government to act for reasons that serve
the public good, and scholars have noted that speech doctrine is largely
structured as a way of smoking out illicit motives.311 The heightened scrutiny that applies to
content-based regulations, for instance, may correspond to an increased risk of
parochial, rather than public-spirited, objectives.

Indeed, rather than serving as categorical legal “immunities” or
“trumps,” modern free-speech rights often simply force the government to show a
sufficient justification for
abridgments of speech.312 “Rights are not general trumps against appeals to
the common good or anything else,” Richard Pildes explains about modern
American law.313 “[I]nstead,” he
writes, “they are better understood as channeling the kinds of reasons government can invoke when it acts in certain
arenas.”314 A ban on all
fires in public, for instance, would trigger a lower degree of judicial
scrutiny than a ban on flag burning, even though both would effectively ban
flag burning.315 And in either
scenario, the government would have a chance to show that the law is
sufficiently tailored to serve sufficiently important governmental interests.
Modern doctrine, in other words, still accommodates certain claims to the
public good.316

But certain claims only. The Court has staunchly resisted the notion,
for instance, that claims to the public good might factor into the threshold
decision of how closely courts should scrutinize speech restrictions. “The
whole point of the First Amendment,” the Court recently declared, “is to afford
individuals protection against [speech] infringements” justified by “a
generalized conception of the public good.”317 Rather, the Court has generally relegated
the public-good analysis to the second stage of its analysis, thus putting the
burden on the government to show the necessity of speech regulations and giving
judges responsibility for ensuring, in the case of content-based regulations,
that the proffered governmental interests are “compelling.” The public good can
still override the speech right, but only rarely.318

This approach departs from history in two ways: First, it waters down
what was originally absolute protection for well-intentioned statements of
one’s views—a category of speech over which the Founders often said that the
government simply had no power (except to regulate statements that violated
natural law). Second, beyond this category, modern doctrine inverts the
Founding Era understanding of freedom of speech as a natural right by putting
the onus on the government to demonstrate a “compelling” justification for
speech restrictions and by making judges the arbiters of what interests are
compelling. Historically, it was up to legislators to assess which restrictions
of speech would best serve the common good, with very little room for judicial
oversight. Speech doctrine has thus followed a familiar pattern across an array
of constitutional rights in the twentieth century: a vast expansion in the
scope of rights coupled with a notable decrease in the afforded level of
protection.319

Still, history offers at least some
support for our non-absolutist approach to expressive freedom. Given the
absence of any explicit textualist basis for a tiers-of-scrutiny approach,
speech law is open to criticism by those who view rights as absolutes. The
First Amendment’s opening declaration that “Congress shall make no law,”
Justice Black famously insisted, does not invite judges to balance its
protections against countervailing social interests.320 Yet if Black had read the text of the
First Amendment in a historically informed way, he might have been more
sympathetic to the tiers-of-scrutiny approach that his colleagues on the
Supreme Court were beginning to adopt. After all, beyond their protection for a
narrow set of customary legal rights, the Speech and Press Clauses simply
recognized the natural right of expressive freedom, and natural rights were
always implicitly qualified by legislative authority to promote the public
good.

On this view, modern doctrine is valid so long as it tries to confine
the processes of democracy to a
good-faith pursuit of the public good—a goal that aligns with a
democracy-reinforcing account of judicial review321—or, perhaps, so long as it confines policy
outcomes to those that comport with
the public good. (The proper level of generality to use in making these
decisions is unclear.) As noted above,322 for instance, one could defend the
tiers-of-scrutiny approach as a way of teasing out whether the government was
restricting speech for public-spirited reasons or was simply trying to insulate
itself from criticism. Or one might take the view that content-neutral
regulations of speech are, on the whole, conducive to the public good, whereas
content-based restrictions erode the benefits of an open speech marketplace.323 But on either view, modern interpreters
must make our own assessments of which doctrines best fulfill these objectives.

In giving doctrinal precision to underdeterminate constitutional
provisions, Jack Balkin explains, “we are permitted, even encouraged, to favor
some [historical] opinions over others—even minority opinions in their day—and
render judgments on the past.”324 In other words, although the history of
speech and press freedoms might settle the meanings
of the Speech and Press Clauses, we can learn from the mistakes of history
in deciding how to apply those
provisions today. Founding Era support for punishing sedition and blasphemy,
for instance, would not prevent us from making our own determination about the
consistency of these laws with the public good. Consequently, although the
constitutional reach of governmental power over speech is certainly far
different now than it was at the Founding, modern speech law could nonetheless
have deeper historical roots, or more feasible historical justifications, than
scholars often realize.

Rather than justifying modern rules in this way, however, the Supreme
Court routinely claims to be shackled by history. Writing for the Court, Justice
Scalia once insisted that the freedom of speech “is the very product of an interest balancing by the
people,” leaving no room for governmental officials, including judges, to
assess whether restrictions of speech promote the public good.325 In a similar vein, the Court recently
rejected as “startling and dangerous” an approach to the First Amendment that
would allow judges to identify “low-value” speech based on its utility.326 Instead, it asserted, “The First Amendment
itself reflects a judgment by the American people that the benefits of its
restrictions on the Government outweigh the costs. Our Constitution forecloses
any attempt to revise that judgment simply on the basis that some speech is not
worth it.”327 And just two
terms ago, the Court seemed to treat the distinction between content-based and
content-neutral restrictions as baked into the First Amendment.328

This Article has nothing to say about whether the rule against
content-based regulations advances the public good, or whether confining
low-value speech to traditional categories is a good idea. Those are empirical
and value-based inquiries that have little to do with the Founding Era. But the
history of speech and press freedoms overwhelmingly disproves the Supreme
Court’s insistence that modern doctrines inhere in the Speech Clause itself,
with judges merely discovering—not crafting—the First Amendment’s contours and
boundaries.

Conclusion

As a natural right, expression was originally subject to regulations
that furthered the public good, leading to vibrant and long-running
constitutional debates about expressive freedom. Nearly everyone who spoke on
the issue agreed that well-intentioned statements of one’s thoughts were
constitutionally protected. A few people thought that any governmental efforts to suppress political speech caused more
harm than good. But for most, deliberate efforts to mislead the public were a
different matter entirely and were deserving of punishment. In sum, opinions
were wide-ranging, with arguments cast at different levels of generality. It
bears emphasis that, on the whole, natural rights provided only a framework for
argument—not a set of determinate legal rights.

The pliability of natural rights thus fostered a dynamic constitutional
culture at the Founding. Natural liberty could be restrained, as William
Blackstone put it, only when “necessary and expedient for the general advantage
of the public.”329 Whenever natural
liberty “is, by the laws of the state, further restrained than is necessary and
expedient for the general advantage,” St. George Tucker declared in 1796, “a
state of civil slavery commences
immediately.”330 Steeped in this
tradition, the Founders virulently contested the scope of all sorts of
governmental powers—including the capacity to regulate expression—from the
standpoint of policy, all the while casting their arguments in terms of an
unchanging original bargain.

Recognizing the contested relationship between natural rights and legal
rules at the Founding also has implications that resonate beyond the context of
expressive freedom. Scholars often read constitutional phrases like “freedom of
speech,” “unreasonable searches and seizures,” and “cruel and unusual
punishments” as, in the words of Jack Balkin, “abstract and vague rights
provisions.”331 Indeed, the
presence of several open-textured
provisions in the Bill of Rights seems to reinforce that the Founders often
preferred general constitutional standards over specific constitutional rules.332 This Article, however, joins other recent
scholarship suggesting that many Founding Era legal elites saw none of these rules as being abstract or
vague. Rather, in their minds, these provisions simply reaffirmed longstanding
features of Anglo-American law.

In the Fourth Amendment context, for instance, Laura Donohue has shown
that Founding Era jurists viewed the ban on “unreasonable” searches and
seizures as a simple reference to customary legal rules. “[A]t the Founding,”
she explains, “there was no such thing as a ‘standard of reasonableness,’ such
as has marked the Fourth Amendment discourse since the 1967 case of Katz v. United States.”333 Rather, Donohue uncovers, unreasonableness
meant “‘against reason,’ which translated into ‘against the reason of the
common law.’”334

Along similar lines, John Stinneford persuasively argues that, far from
stating a “vague moral command,” the Eighth Amendment rule against “cruel and
unusual” punishments actually called for a careful study of the common law.335 “[T]he best way to discern whether a government
practice comported with principles of justice,” Stinneford writes, “was to
determine whether it was continuously employed throughout the jurisdiction for
a very long time, and thus enjoyed ‘long usage.’”336

In part, this Article reinforces these arguments. For many Founding Era
legal elites, the First Amendment—far from being vague or abstract—imposed
discrete legal commands recognized at common law. The First Amendment, in other
words, was not designed or originally understood to provide a font of
judicially crafted doctrines protecting expressive freedom.

At the same time, the history of the First Amendment complicates the
idea that seemingly abstract constitutional rights actually carried more
determinate common-law meanings.337 Many Founders, as this Article
demonstrates, forcefully rejected lawyerly assumptions about constitutional
interpretation. In this way, the Founders’ virulent contest over the legal
implications of expressive freedom muddies the historical accounts offered by
Donohue and Stinneford. If Republicans like George Hay were right that
answering “a great constitutional question . . . depends, not on
cases and precedents furnished by books, but on principles whose origin is to
be traced in the law of nature,”338 that observation resonated far beyond the topic
of expressive freedom.339

A scholarly focus on the indeterminacy of the original First Amendment
may thus seem deserved. That emphasis, however, misses a crucial point. As
concepts, speech and press freedoms were relatively well defined, even though
written in a different language. And perhaps, with a hint of irony for those
who seek constitutional stability in original meaning, this lost history
reveals our modern dilemma: the proper scope of expressive freedom is left for
us to determine.

To be sure, originalists might accept the more lawyerly Federalist position, leaving the Donohue a…

1

United States v. Stevens, 599 U.S. 460, 470 (2010); see also District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (“[T]he First [Amendment] . . . is the very product of an interest balancing by the people.”).

See, e.g., Wendell Bird, Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign Against Dissent 15-30 (2016); Leonard W. Levy, Emergence of a Free Press 170-71 (1985); Philip A. Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 Yale L.J. 907, 919 & n.39 (1993); Steven J. Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression, 78 B.U. L. Rev. 1275, 1289, 1292 (1998); Leonard W. Levy, On the Origins of the Free Press Clause, 32 UCLA L. Rev. 177, 180, 204 (1984); Melville B. Nimmer, Introduction—Is Freedom of the Press a Redundancy: What Does It Add to Freedom of Speech?, 26 Hastings L.J. 639, 640-41 (1975); Eugene Volokh, Symbolic Expression and the Original Meaning of the First Amendment, 97 Geo. L.J. 1057, 1079-83 (2009). The term “freedom of expression” was rarely used in the eighteenth century but is used here for simplicity. But seeAnswer of the Senate of Pennsylvania to Governor Mifflin’s Speech, Dunlap & Claypoole’s Am. Daily Advertiser (Philadelphia), Dec. 14, 1795, at 3 (“The communication of sentiment, with temper and decency, is a right which never should be impaired: Freedom of expression will only be abused by those who wish to conceal, or pervert, the truth.”).

4

See, e.g., Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 168 (2012); Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 46-47 (1985); Richard A. Primus, The American Language of Rights 73 & n.44 (1999); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 292 (1996).

David A. Anderson, The Origins of the Press Clause, 30 UCLA L. Rev. 455, 487 (1983); see also Stewart Jay, The Creation of the First Amendment Right to Free Expression: From the Eighteenth Century to the Mid-Twentieth Century, 34 Wm. Mitchell L. Rev. 773, 793 (2008) (agreeing with Anderson); Lawrence Rosenthal, First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech, 86 Ind. L.J. 1, 17 (2011) (same).

Scholars who emphasize the indeterminacy of original meaning typically highlight the clashing views over sedition. See, e.g., Smolla, supra note 2, at § 1:11. By contrast, those who take sides often argue that the opposing view was not prevalent until the late 1790s. Compare Levy, supra note 3, at xii (“[T]he theory of freedom of political expression remained quite narrow until 1798 . . . .”), with Anderson, supra note 6, at 521 (“The Federalists who sought to prevent criticism of government by passing the Sedition Act were not the Framers, nor did they share the Framers’ views.”). For other key works, see Bird, supra note 3; Phillip I. Blumberg, Repressive Jurisprudence in the Early American Republic: The First Amendment and the Legacy of English Law (2010); Walter Berns, Freedom of the Press and the Alien and Sedition Laws: A Reappraisal, 1970 Sup. Ct. Rev. 109; David S. Bogen, The Origins of Freedom of Speech and Press, 42 Md. L. Rev. 429 (1983); Hamburger, supra note 3; Philip B. Kurland, The Original Understanding of the Freedom of the Press Provision of the First Amendment, 55 Miss. L.J. 225 (1985); William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression, 84 Colum. L. Rev. 91 (1984); David M. Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History, 37 Stan. L. Rev. 795 (1985); and Stephen A. Smith, The Origins of the Free Speech Clause, 29 Free Speech Y.B. 48 (1991).

9

Geoffrey R. Stone, The Story of the Sedition Act of 1798: “The Reign of Witches,”in First Amendment Stories 13, 23 (Richard W. Garnett & Andrew Koppelman eds., 2012). For others who emphasize a lack of consensus at the Founding, see, for example, David L. Lange & H. Jefferson Powell, No Law: Intellectual Property in the Image of an Absolute First Amendment 210 (2009); Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel 70 (1986); Jack M. Balkin, Nine Perspectives on Living Originalism, 2012 U. Ill. L. Rev. 815, 837; Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 22 (1971); Saul Cornell, Meaning and Understanding in the History of Constitutional Ideas: The Intellectual History Alternative to Originalism, 82 Fordham L. Rev. 721, 748-54 (2013); and Saul Cornell, The People’s Constitution vs. The Lawyer’s Constitution: Popular Constitutionalism and the Original Debate over Originalism, 23 Yale J.L. & Human. 295, 326-34 (2011) [hereinafter Cornell, The People’s Constitution vs. The Lawyer’s Constitution].

See Wendell Bird, Liberties of Press and Speech: ‘Evidetestnce Does Not Exist To Contradict the . . . Blackstonian Sense’ in Late 18th Century England?, 36 Oxford J. Legal Stud. 1 (2016).

13

The intellectual foundation of this language was social-contract theory. See Jud Campbell, Republicanism and Natural Rights at the Founding, 32 Const. Comment. 85, 87 (2017) (reviewing Randy E. Barnett, Our Republican Constitution: Securing The Liberty And Sovereignty of We the People (2016)). Founding Era discussions of social-contract theory and natural rights were common. See, e.g., John Adams, A Defence of the Constitutions of Government of the United States of America 6 (Philadelphia, Hall & Sellers 1787); 1 William Blackstone, Commentaries *47; Alexander Hamilton, The Farmer Refuted (1775), reprinted in 1 The Papers of Alexander Hamilton 81, 88 (Harold C. Syrett ed., 1961); James Madison, Essay on Sovereignty (1835), in 9 The Writings of James Madison 568, 570 (Gaillard Hunt ed., 1910); Gouverneur Morris, Political Enquiries (1776), in To Secure the Blessings of Liberty: Selected Writings of Gouverneur Morris 5, 9 (J. Jackson Barlow ed., 2012); 1 Zephaniah Swift, A System of the Laws of the State of Connecticut 16 (Windham, John Byrne 1795); Richard Wooddeson, Elements of Jurisprudence: Treated of in the Preliminary Part of a Course of Lectures on the Laws of England 22 (London, T. Payne & Son 1783).

Common Sense [Thomas Paine], Candid and Critical Remarks on Letter 1, Signed Ludlow, Pa. J. & Wkly. Advertiser, June 4, 1777, at 1; see also 1 Thomas Rutherford, Institutes of Natural Law 36 (Cambridge, J. Bentham 1754) (“Another division of our rights is into natural and adventitious. Those are called natural rights, which belong to a man . . . originally, without the intervention of any human act.”); Hamburger, supra note 3, at 919 (“[Americans] understood natural liberty to be the freedom an individual could enjoy as a human in the absence of government.”).

See Cornell, The People’s Constitution vs. The Lawyer’s Constitution, supra note 9, at 296-97, 306. As Cornell notes, “the conflict over legal interpretation . . . exist[ed] along a spectrum in which elite culture shaded gradually into a more popular plebian culture.” Id. at 309.

See, e.g., Alexander Addison, A Charge to the Grand Juries of the County Courts of the Fifth Circuit of the State of Pennsylvania 13 (Vergennes, Samuel Chipman 1799) (arguing that sedition leads to the “greatest of all plagues, the corruption of public opinion”).

24

See, e.g., John Thomson, An Enquiry, Concerning the Liberty, and Licentiousness of the Press, and the Uncountroulable Nature of the Human Mind 83 (New York, Johnson & Stryker 1801) (describing the “laws of society”—akin to the proverbial marketplace of ideas—as “fully sufficient to the purpose” of handling malicious falsehoods); Tunis Wortman, A Treatise, Concerning Political Enquiry, and the Liberty of the Press 170 (New York, George Forman 1800) (“Public prosecutions for libels are . . . more dangerous to Society than the misrepresentation which they are intended to punish.”). This view developed among English radicals, whose writings circulated in America. See, e.g., Richard Price, Observations on the Importance of the American Revolution, and the Means of Making It a Benefit to the World 25 (London, Barlow & Babcock 1784) (arguing that the “evils” of granting civil authority to regulate speech outweigh the benefits); James Burgh, Of the Liberty of Speech and Writing on Political Subjects, in 3 Political Disquisitions 246, 254 (London, Edward and Charles Dilly 1775) (“For if you punish the slanderer, you deter the fair inquirer.”).

25

Readers need not accept a general distinction between meanings and expected applications in order to recognize my point, which is simply that individuals could simultaneously agree that speaking, writing, and printing were natural rights regulable in the public interest and disagree about whether particular governmental restrictions of speaking and printing promoted the public good. For arguments in favor of a general distinction between meanings and expected applications, see Christopher R. Green, Originalism and the Sense-Reference Distinction, 50 St. Louis U. L.J. 555, 559 (2006); and Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 383 (2013).

Id. at 470; see also United States v. Alvarez, 132 S. Ct. 2537, 2544, 2547 (2012) (plurality opinion) (summarizing the same idea, with application to false statements).

33

McCutcheon v. FEC, 134 S. Ct. 1434, 1449 (2014).

34

CompareZechariah Chafee Jr., Freedom of Speech 17-24 (1920) (insisting that the First Amendment was designed to bar seditious libel prosecutions),withLeonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 2-3 (1960) (arguing that historical evidence “points strongly in support” of the conclusion that the First Amendment “left the law of seditious libel in force”), and Rabban, supra note 8, at 796 (arguing that Levy’s focus on seditious libel led him to overlook genuine and growing support among the Founders for a greater degree of expressive freedom).

35

See, e.g., Vikram Amar, Introduction to The First Amendment Freedom of Speech: Its Constitutional History and the Contemporary Debate 13, 13 (Vikram David Amar ed., 2009); Genevieve Lakier, The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2180-81 (2015); Marc Lendler, “Equally Proper at All Times and at All Times Necessary”: Civility, Bad Tendency, and the Sedition Act, 24 J. Early Republic 419, 426 n.28 (2004).

Hamburger’s only engagement with this issue is an unilluminating footnote:

[N]atural law was not necessarily the only indication of what was an abridgement of the constitutional right, because a constitution might enumerate a natural right but qualify or supplement its protection of the right. The First Amendment right of free speech and press, for example, was understood to preclude publication censorship . . . . [T]his preference for postpublication restraints was highly compatible with the notion of a physical natural right, but it was not claimed to be derived from natural rights analysis.

Id. at 954 n.130. In a similar vein, David Bogen shows that many Founders viewed the freedom of speech as a natural right, but he offers little account of what that meant. See Bogen, supra note 8, at 453 (“[N]atural rights theory . . . failed to mark the line between protected liberty and punishable license.”). Like Hamburger, Bogen does not explore the place of customary positive rights within a natural-rights framework. See id. at 450-53.

41

See, e.g., Thomas B. McAffee, The Bill of Rights, Social Contract Theory, and the Rights “Retained” by the People, 16 S. Ill. U. L.J. 267, 278-79 (1992); see also Levy, supra note 3, at 225 (“The Framers believed that . . . no provision of the Constitution authorized the government to act on any natural rights.”); cf. Heyman, supra note 3, at 1282 (classifying freedom of thought as a right “not subject to legislative regulation for the public good . . . [but] nevertheless limited by the rights of others”). For others who interpret the First Amendment as a categorical ban on federal regulations of expression, see supra note 36 (collecting sources).

42

See infra notes 114-118 and accompanying text.

43

See infra notes 290-294 and accompanying text.

44

See, e.g., Patterson v. Colorado, 205 U.S. 454, 462 (1907) (providing that the First Amendment prohibits prior restraints on speech but permits “the subsequent punishment of such [speech] as may be deemed contrary to the public welfare”). See generally Crowley v. Christensen, 137 U.S. 86, 89 (1890) (“[T]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community.”); Victoria F. Nourse, A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights, 97 Calif. L. Rev. 751, 752 (2009) (“Today, fundamental rights trump the general welfare, whereas in 1905, under the police power of the state, the general welfare trumped rights.”).

45

See, e.g., N.Y. Legislative Debates (Jan. 26, 1790), inN.Y. Daily Gazette, Jan. 27, 1790, at 2 (statement of Rep. Rufus King) (“The liberty of uttering our sentiments and giving publicity of our thoughts, might be supposed an evil were it not well guarded against by wholesome laws, which prevents any one man from injuring another.”).

46

See infra notes 188-189 and accompanying text.

47

Because of the evidence available, this Article relies on the views of Founding Era elites. References to the Founders, Americans, and so forth, should be read accordingly. Of course, this binary distinction between “elites” and “non-elites” is stylized. See Saul Cornell, Conflict, Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard, 29 Const. Comment. 383, 388 (2014).

48

Although “large numbers of Americans spoke about government, liberty and constitutional law on the basis of some shared assumptions about natural rights and the state of nature,” Hamburger, supra note 3, at 915, these speakers may not be representative of the entire Founding generation, see id. at 916.

49

Perhaps those unfamiliar with natural-rights reasoning would have understood the term as the practical freedom that speakers and publishers exercised at the time of the First Amendment’s ratification—a meaning that would prevent the government from instituting any new restrictions of speech or the press. Without evidence, one scholar posited this idea. See Leonard W. Levy, The Legacy Reexamined, 37 Stan. L. Rev. 767, 769 (1985); cf. James Iredell’s Charge to the Grand Jury of the Circuit Court for the District of Pennsylvania, Claypoole’s Am. Daily Advertiser (Philadelphia), Apr. 11, 1799, reprinted in 3 The Documentary History of the Supreme Court of the United States, 1789-1800, at 332, 347 (Maeva Marcus et al. eds., 1990) [hereinafter Iredell] (“What might be deemed the Freedom of the Press, if it had been a new subject, and never before in discussion, might indeed admit of some controversy.”). Or perhaps Americans unfamiliar with social-contract theory would have interpreted the First Amendment in light of the Speech and Debate Clause. Yet again, however, historical evidence does not support that view. See infra notes 275-281 and accompanying text.

50

See infra Part IV. For this reason, this Article cannot refute interpretive arguments based on other methodologies.

51

Readers may refer to any Supreme Court opinion that mentions history. To be sure, Justice Scalia once asserted that the Constitution’s original meaning “excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.” District of Columbia v. Heller, 554 U.S. 570, 577 (2008). But the Court never demonstrates that elite sources reflect how “ordinary citizens” would have understood the Constitution’s words and phrases, and it regularly relies on highly technical legal sources that were surely unfamiliar to most ordinary citizens. Cf. Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 Nw. U. L. Rev. 923, 970 (2009) (offering an originalist perspective on the “public meaning” of terms of art). Of course, limiting the relevant public to voters might narrow the linguistic gap between the public and elites, see Mark Tushnet, Heller and the New Originalism, 69 Ohio St. L.J. 609, 611-12 (2008), but that limitation is unwarranted if the relevant public includes non-voting members of the body politic.

See, e.g., Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution 199 (1996) (“The First Amendment . . . cannot be applied to concrete cases except by assigning some overall point or purpose to the amendment’s abstract guarantee of ‘freedom of speech or of the press.’”).

In particular, many scholars have noted that preserving republican government was the primary objective for many proponents of speech and press freedoms. See Bhagwat, supra note 55, at 1102 (“[A] broad consensus has emerged over the past half-century regarding the fundamental reason why the Constitution protects free speech: to advance democratic self-governance.”). That account of the Founders’ motives is certainly true. But one goal of this Article is to show that the meanings of speech and press freedoms, as concepts, were not defined by or limited to concerns about preserving republican government.

See, e.g., Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 132-49, 255-71 (rev. ed. 2014). This view is ahistorical, see Campbell, supra note 13, at 105-08, but that does not make it “wrong.” Modern constitutional practice ultimately has to be based on normative grounds (or some other assessment of what counts as our law), which may call for only a limited form of historical inquiry. See Whittington, supra note 25, at 400-04 (discussing the relationship between originalism and judicial review).

Thomas Hayter, An Essay on the Liberty of the Press Chiefly as it Respects Personal Slander 18 (London, J. Raymond 1755); see also Freeman’s J.: or, The North-Am. Intelligencer (Philadelphia), Nov. 16, 1785, at 3 (reprinting this passage); Pa. Packet (Philadelphia), Nov. 12, 1785, at 2 (same); Va. Gazette (Williamsburg), May 18, 1776, at 1 (same). For other sources that identify speaking, writing, and publishing as retained natural rights, see, for example, 8 Annals of Cong. 2,148 (1798) (statement of Rep. Harrison Gray Otis) (mentioning the “liberty of writing, publishing, and speaking, one’s thoughts, under the condition of being answerable to the injured party”); 4 Annals of Cong. 918 (1794) (statement of Rep. William Giles) (referring to the “the inalienable privilege of thinking, of speaking, of writing, and of printing”); Congressional Debates (Jan. 21, 1791) (statement of Rep. Fisher Ames), in 14 Documentary History of the First Federal Congress, supra note 14, at342 (William Charles DiGiacomantonio et al. eds., 1995) (describing the freedom of speech as an “unalienable right”); id. at 340 (statement of Rep. John Vining) (“[N]o law can divest” individuals of the right “of speaking and writing their minds . . . .”); Proposal by [Roger] Sherman to House Committee of Eleven (July 21-28, 1789), in The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 83 (Neil H. Cogan ed., 1997) [hereinafter Complete Bill of Rights] (“Speaking, writing and publishing” are among “certain natural rights which are retained”); Resolution of the Virginia House of Delegates, Va. Gazette, & Gen. Advertiser (Richmond), Jan. 3, 1798, at 2 (referring to the “natural right of speaking and writing freely”); 2 Joseph Priestley, Lectures on History, and General Policy 47 (Philadelphia, P. Byrne 1803) (“[I]n a state of society, every man retain[s] his natural powers of speaking, writing, and publishing his sentiments on all subjects . . . .”); Freeborn American, Bos. Gazette & Country J., Mar. 9, 1767, reprinted in Freedom of the Press from Zenger to Jefferson 95, 95 (Leonard W. Levy ed., 1996) [hereinafter Freedom of the Press] (“Man, in a state of nature, has undoubtedly a right to speak and act without controul.”); Letter from Thomas Jefferson to David Humphreys (Mar. 18, 1789), in 14 The Papers of Thomas Jefferson, supra note 14, at 676, 678 (1958) (“[R]ights which it is useless to surrender to the government” include “the rights of thinking, and publishing our thoughts by speaking or writing . . . .”); and Letter from Thomas Paine to Thomas Jefferson (Mar. 1788), in 13 The Papers of Thomas Jefferson, supra note 14, at 4, 5 (1956) (“[N]atural rights” include “the rights of thinking, speaking, forming and giving opinions . . . .”). The understanding of speaking, writing, and publishing as natural rights was articulated in seminal discussions about speech and press freedoms during the Zenger controversy. See Argument of Andrew Hamilton, in Freedom of the Press, supra, at 43, 54 (“I beg Leave to insist, That the Right of complaining or remonstrating is natural; And the Restraint upon this natural Right is the Law only, and that those Restraints can only extend to what is false . . . .”); N.Y. Weekly J. (Nov. 1733), reprinted in Freedom of the Press, supra, at 30 (“No Nation Antient or Modern ever lost the Liberty of freely Speaking, Writing, or Publishing their Sentiments, but forthwith lost their Liberty in general and became Slaves.”).

74

For instance, one scholar insists that confining regulations of expression to lawful restraints would have been “nothing but a tautology.” Bird, supra note 3, at 11. But this reflects an anachronistic view of freedom. Confining any restraints of natural liberty to known laws passed with the consent of the people and in pursuit of the public good was, according to many eighteenth-century thinkers, the very essence of freedom. See John Phillip Reid, The Ancient Constitution and the Origins of Anglo-American Liberty 38-39 (2005); see, e.g., The Democratic Society of the City of New-York, to Their Brethren the Citizens of the United States (Jan. 14, 1795), in The Democratic-Republican Societies, 1790-1800: A Documentary Sourcebook of Constitutions, Declarations, Addresses, Resolutions, and Toasts 192, 195 (Philip S. Foner ed., 1976) [hereinafter Democratic-Republican Societies] (“Civil Liberty is the right of the citizen freely to dispose of his actions subject only to the restraint of the laws . . . . Restraint commences . . . where the liberty of one individual is incompatible with the safety, or happiness of another—it is dictated by justice, and constitutes law.”).

75

See, e.g., A Citizen of New-York [John Jay], An Address to the People of the State of New York (Apr. 15, 1788), in 20 Documentary History of the Ratification, supra note 14, at 922, 933 (John P. Kaminski et al. eds., 2004).

76

See, e.g., Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 24, 1788) (statement of James Iredell), reprinted in 4 The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787, at 10-11 (Jonathan Elliot ed., 2d ed. 1836) [hereinafter Debates in the Several State Conventions]; The Federalist No. 84 (Alexander Hamilton); Remarker, Indep. Chron., Dec. 27, 1787, reprinted in 5 Documentary History of the Ratification, supra note 14, at 527, 529-30 (John P. Kaminski et al. eds., 1998); see also Gordon S. Wood, The History of Rights in Early America, in The Nature of Rights at the American Founding and Beyond 233, 236-42 (Barry Alan Shain ed., 2007) [hereinafter The Nature of Rights] (describing the development of this view in England and America).

77

See Herbert J. Storing, What the Anti-Federalists Were For 69-70 (Murray Dry ed., 1981); Jack N. Rakove, The Dilemma of Declaring Rights, in The Nature of Rights, supra note 76, at181, 193-94.

See Campbell, supra note 13, at 107-08; see also infra notes 290-294 and accompanying text.

82

Although not explored in this Article, other parts of the First Amendment also protected fundamental positive rights that furthered the natural right of expressive freedom. The ancient right to petition, for instance, was a procedural device through which individuals and groups could seek redress of grievances with accompanying “protect[ion] from formal political retaliation by governmental authorities.” Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right To Petition, 66 Fordham L. Rev. 2153, 2202 (1998). The right of peaceable assembly similarly barred prosecutions for peaceable public meetings, although its broader implications were contested. See Saul Cornell, “To Assemble Together for Their Common Good”: History, Ethnography, and the Original Meanings of the Rights of Assembly and Speech, 84 Fordham L. Rev. 915, 928-30 (2015); see also John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 21-29 (2012) (discussing the history of the freedom of assembly in the Founding Era).

83

See Campbell, supra note 13, at 87.

84

Id. at 87-88.

85

See, e.g., Ronald M. Peters, Jr., The Massachusetts Constitution of 1780: A Social Compact 74-75 (1974); John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights 88-90 (1986); James Wilson, Of the Natural Rights of Individuals, in 2 Collected Works of James Wilson 1053, 1055-56 (Kermit L. Hall & Mark David Hall eds., 2007).

86

When Federalists came under fire for not enumerating rights, however, they mercilessly mocked their Anti-Federalist opponents by pointing out the limitless breadth of natural liberty. See Philip A. Hamburger, Trivial Rights, 70 Notre Dame L. Rev. 1, 20-30 (1994).

Proposal by Sherman to House Committee of Eleven, July 21-28, 1789, in Complete Bill of Rights,supra note 73, at 83.

93

Freeborn American, supra note 73, at 95.

94

Alexander Addison, Analysis of the Report of the Committee of the Virginia Assembly, on the Proceedings of Sundry of the Other States in Answer to their Resolutions 44 (Philadelphia, Zachariah Poulson Jr. 1800).

95

John Taylor, An Inquiry into the Principles and Policy of the Government of the United States 473 (Fredericksburg, Green & Cady 1814).

96

Richard Price, Observations on the Importance of the American Revolution, and the Means of Making It a Benefit to the World 21-22 (London, T. Cadell 1784).

97

Eteocles, An Essay on the Freedom of Speech, Md. Gazette (Annapolis), Nov. 24, 1780, at 180.

Hayter, supra note 73, at 18; seealsoAddison, supra note 23, at 4 (“We communicate our sentiments by words spoken, written, or printed, or by pictures or other signs.”); William Bollan, The Freedom of Speech and Writing upon Public Affairs, Considered 3-4 (London, S. Baker 1766) (discussing “speech and writing, or printing, a species of writing invented for the more expeditious multiplication of copies, both being modes of presenting to the eye what speech conveys to the ear”).

See 12 The Oxford English Dictionary 411 (J.A. Simpson & E.S.C. Weiner eds., 2d. ed. 1989); see alsoJames Sullivan, Dissertation upon the Constitutional Freedom of the Press in the United States 10 (Boston, Joseph Nancrede 1801) (“The conventions of the states, and the Congress of the United States, use the word press as descriptive of the free communication of ideas and sentiments, by the art of printing.”). See generally Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012).

103

See, e.g., 8 Annals of Cong. 2167-68 (1798) (statement of Rep. Harper) (decrying the “licentious abuse” of the liberty of the press, thus alluding to the natural-rights distinction between liberty and license—i.e., the abuse of liberty); Nathaniel Chipman, Sketches of the Principles of Government 152 (Rutland, Vt., J. Lyon 1793) (“Let there be no restraint upon the liberty of the Press, no check upon public or private discussion, but what is imposed by the manners, morals, taste, and good sense of the age.”).

104

The Craftsman No. 121, in 3 The Craftsman 274, 274 (Caleb D’Anvers ed., London, R. Francklin 1731) (emphasis omitted); see American Intelligence, Indep. Gazetteer (Philadelphia), Jan. 5, 1789, at 3 (“Freedom of speech, which is nothing more than the freedom of press, is the great bulwark of liberty . . . .”). Other authors treated the freedom of speech as synonymous with “the liberty of individuals to communicate their thoughts to the public.” Of the Liberty of the Press and Elections, London Evening Post, Oct. 29, Nov. 9, Nov. 14, 1754, reprinted in 16 Scots Magazine 518-19 (1754). As this passage illustrates, “liberty” and “freedom” were typically used interchangeably.

105

See Hamburger, supra note 3, at 922-30.

106

See id. at 930.

107

See David Hume, Of the Original Contract, in 2 Essays and Treatises on Several Subjects 287, 289-91 (London, A. Millar 1760); see also Rutherford, supra note 15, at 10 (“It is therefore the law of [man’s] nature, that he should live in society with others of his own species” and “should join with them in a common interest . . . as to labour with them for a general good.”).

108

Chipman, supra note 103, at 75.

109

Wilson, supra note 85, at 1056.

110

Id. at 1055-56 (emphasis added).

111

See Campbell, supra note 13, at 88; see, e.g., John Locke, Second Treatise of Government §§ 96-97 (1690), reprinted in Two Treatises of Government and a Letter Concerning Toleration 142 (Ian Shapiro ed., 2003); Theophilus Parsons, Essex Result, in Memoir of Theophilus Parsons 359, 366 (Boston, Ticknor & Fields 1861). Although typically cast in historical terms, the social contract was a theoretical idea used to frame the relationship between individuals and their government. See Campbell, supra note 13, at 87 n.10, 89 n.19.

112

Mass. Const. of 1780, pmbl.

113

See, e.g., Adams, supra note 13, at 6; 1 William Blackstone, Commentaries *52; Madison, supra note 13, at 570. In English and colonial thought, this agreement was often described as an “original contract” between the people and the monarch. See Reid, supra note 85, at 132-34. Founding Era writers sometimes merged the social contract and constitution. See Philip Hamburger, Law and Judicial Duty 98-99, 294 (2008); see, e.g., Sullivan, supra note102, at 11 (“In the social compacts, which we denominate constitutions . . . .”). This conflation was common in the United States after independence, see Thad W. Tate, The Social Contract in America, 1774-1787: Revolutionary Theory as a Conservative Instrument, 22 Wm. & Mary Q. 375, 376 (1965), likely because the notion of an “original contract” between the people and a monarch became obsolete. But American constitutional theorists maintained the distinction between a social contract and a constitution. See, e.g., Adams, supra note 13, at 6; Madison, supra note 13, at 570; see also 3 John Phillip Reid, Constitutional History of the American Revolution 114 (1991) (“American Whigs, in contrast to later historians, seldom compound[ed] or confuse[d] the two contracts.”); Reid, supra note 85, at 133-34 (noting eighteenth-century political writers’ distinctions between the social contract and the original contract).

114

See Campbell, supra note 13, at 92-94; see, e.g., Joseph Priestley, An Essay on the First Principles of Government, and on the Nature of Political, Civil, and Religious Liberty 12-13 (2d ed., London, J. Johnson 1771) (“It must necessarily be understood, therefore, whether it be expressed or not, that all people live in society for their mutual advantage; so that the good and happiness of the members, that is the majority of the members of any state, is the great standard by which every thing relating to that state must finally be determined.”); John Witherspoon, Lectures on Moral Philosophy, in The Selected Writings of John Witherspoon 191 (Thomas P. Miller ed., 1990) (“[I]t is certain that the public good has always been the real aim of the people in general in forming and entering into any society.”). When Jefferson recommended five works on “the organization of society into civil government . . . according to the rights of nature,” Letter from Thomas Jefferson to John Norvell (June 11, 1807), in 5 The Writings of Thomas Jefferson 90, 90-91 (H. A. Washington ed., 1853), all of his recommendations prioritized the public good. See Chipman, supra note 103, at 174-75 (noting that retained natural rights “must be in a just compromise with the convenience and happiness of others, agreeably to the laws of social nature, and such combinations and regulations, as are clearly derived from those laws”); JohnLocke, Second Treatise of Government § 130 (1690), reprinted in John Locke, supra note 111, at 156 (noting that individuals surrender “as much . . . natural Liberty . . . as the Good, Prosperity, and Safety of the Society shall require”); The Federalist No. 43, at 297 (James Madison) (Jacob E. Cooke ed., 1961) (“[T]he safety and happiness of society are the objects at which all political institutions aim.”); Priestley, supra, at 57 (“[A]ll claims of individuals inconsistent with the public good are absolutely null and void.”); Algernon Sidney, Discourses Concerning Government 255 (2d ed., London, J. Darby 1704) (stating that “the publick Good . . . is the end of all . . . Government”) (emphasis added).

115

The Federalist No. 43, supra note 114, at 297 (James Madison); see also supra note 114 and accompanying text (discussing the public good).

116

See, e.g., Alexander Hamilton, Opinion on the Constitutionality of the Bank, in 8 The Papers of Alexander Hamilton, supra note 13, at 91 (1965).

117

See, e.g., The Federalist No. 37, supra note 114, at 239 (James Madison) (noting “the necessity of sacrificing private opinions and partial interests to the public good”); James Wilson, Of Citizens and Aliens, in 2 Collected Works of James Wilson,supra note 85, at 1038, 1043 (“By the will and by the interest of the community, every private will and every private interest must be bound and overruled.”); see also Campbell, supra note 13, at 93 n.41 (collecting other sources).

1 Zephaniah Swift, A Digest of the Laws of the State of Connecticut 15 (New Haven, S. Converse 1822); see also New York Ratification Convention Debates (June 25, 1788) (statement of Melancton Smith), in 22 Documentary History of the Ratification, supra note 14, at 1877, 1879 (John P. Kaminski et al. eds., 2008) (“What is government itself, but a restraint upon the natural rights of the people?”).

This confusion is most apparent in the view that natural rights were categorical exclusions of regulatory authority. See sources cited supra note 41. For an illuminating effort to trace and unravel much of the confusion, see Dan Edelstein, Early-Modern Rights Regimes: A Genealogy of Revolutionary Rights, 3 Critical Analysis L. 221 (2016).

For a discussion of how individuals could “retain” their natural rights in a social contract but consent to certain restrictions of those liberties under law, see Campbell, supra note 13, at 96-98.

128

Chipman, supra note 103, at 74.

129

Id. at 175 (emphasis added); see also Supplement to Max Farrand’s The Records of the Federal Convention of 1787, at 183 (James H. Hutson ed., 1987) (“[W]e are not working on the natural rights of men not yet gathered into society, but upon those rights, modified by society . . . .” (quoting Nathaniel Chipman)).

130

Chipman, supra note 103, at 175 (emphasis added).

131

James Wilson, On the History of Property, in 1 Collected Works of James Wilson, supra note 85, at 387.

132

Wilson, supra note 85, at 1056 (emphasis added).

133

See Addison, supra note 94, at 46 (“[T]he liberty of conscience cannot be modified, and the liberty of the press cannot be abridged, by authority of the United States.”); Thomas Jefferson, Jefferson’s Opinion on the Constitutionality of the Residence Bill (July 15, 1790), in 17 The Papers of Thomas Jefferson, supra note 14, at194, 195-97 (1965) (using the phrase “abridged or modified,” and treating “modified” as synonymous with “regulated in [its] exercise by law”). In the late 1790s, some Republicans elided the inherent limits on expressive freedom imposed by natural law and social obligation, thus leading to the view that any regulation of expression was an abridgment of the freedom of speech. See St. George Tucker, View of the Constitution of the United States (1803), reprinted in View of the Constitution of the United States with Selected Writings 91, 386 (1999).

134

See Campbell, supra note 13, at 92-98.

135

1 William Blackstone, Commentaries *125.

136

See Campbell, supra note 13, at 92-98.

137

See infra notes 290-294 and accompanying text.

138

Hayter, supra note 73, at 8, 18.

139

Freeborn American, supra note 73, at 95; see Tenax, To the People of Pennsylvania, The Freeman’s Journal: or, the North-American Intelligencer, Oct. 30, 1782, at 1; William Livingston, Of the Use, Abuse, and Liberty of the Press, The Indep. Reflector or Wkly. Essays on Sundry Important Subjects, Aug. 30, 1753, reprinted in Freedom of the Press, supra note 73, at75, 79.

140

See, e.g., Jacob Rush, The Nature of an Oath Stated and Explained, inCharges, and Extracts of Charges, on Moral and Religious Subjects 33, 44 (Philadelphia, 1804) (defending bans on profane swearing because it “lessen[s] that awe and reverence of the Supreme Being, which is one of the strongest guards against perjury; and consequently be in a high degree, injurious to society”). Others recognized that disrupting the “peace and order of society” was grounds for restricting publications, even without directly violating the rights of others. See Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 330 n.* (Pa. 1788); cf. Letter from Thomas Jefferson to James Madison (Aug. 28, 1789), in 15 The Papers of Thomas Jefferson, supra note 14, at 364, 367 (1958) (endorsing restrictions of speech “affecting the peace of the confederacy with foreign nations”). Occasionally, writers worried that a general declaration of press freedom might be construed to “extend to the justification of every possible publication.” America [Noah Webster], To the Dissenting Members of the Late Convention of Pennsylvania, N.Y. Daily Advertiser, Dec. 31, 1787, reprinted in19 Documentary History of the Ratification, supra note 14, at 484, 487 (John P. Kaminski et al. eds., 2003); see also Hamburger, supra note 3, at 936 n.83; cf. N.Y. Legislative Debates (Jan. 26, 1790), in N.Y. Daily Gazette, Jan. 27, 1790, at 2 (statement of Rep. Samuel Jones) (“[H]e hoped that something might be done, if it were possible, to discriminate between the liberty and the licentiousness of the press. The amendment now proposed would be nugatory, as something similar thereto was already included in the constitution. Unless it went a little farther, it appeared to him as if this amendment would not leave it in the power of the legislature to make any law even to punish the injuries that might be done to individuals by the indiscriminate publication of libels.”). But these sources do not indicate that existing legal privileges actually extended that far or that the Founders wanted to extend them that far.

141

See Heather S. Nathans, Early American Theatre from the Revolution to Thomas Jefferson: Into the Hands of the People 37-70 (2003).

See, e.g., 10 Annals of Cong. 925 (1801) (statement of Rep. Samuel Dana) (“[T]hough upon general principles, truth may be said to be an antidote to falsehood, truth does not always make its appearance in time to prevent the evil intended by the evil-disposed.”).

146

Sullivan, supra note 102, at 21-22. Sullivan, despite being a Republican, defended the constitutionality of the Sedition Act. See id.

Id. at 63-64; see also, e.g., 10 Annals of Cong. 928 (1801) (statement of Rep. Benjamin Huger) (“[S]o nice and delicate were the shades of distinction between the licentiousness of the press, and a necessary freedom of discussion, that it was upon the whole better perhaps . . . to leave the measures of Government and its Administration entirely open to investigation and animadversion, without attempting to repress the eccentricities and exuberances of public discussion by even an ideal restraint.”).

To be sure, the doctrinalconclusions that Republicans reached were often categorical, but their pre-doctrinal understandings of expressive freedom usually were not. See, e.g., George Hay, An Essay on the Liberty of the Press 27-28 (Richmond, Samuel Pleasants, Jr. 1803) (concluding that publications on “matters of public concern” were immune from punishment because “the point at which freedom of enquiry ends and licentiousness begins, must remain forever unknown”). For a narrower interpretive argument that did take a categorical form, see infra Section II.B. Republicans in the late 1790s also wholly denied federal power over expression based on a novel interpretation of the First Amendment. See infra Section III.B; see also Jud Campbell, The Invention of First Amendment Federalism (Sept. 10, 2017) (unpublished draft) (on file with author).

153

Tenax, supra note 139, at 1, 2.

154

Id. Though unattributed, this language was drawn directly from Blackstone. See 4 William Blackstone, Commentaries *152 (“[T]he disseminating, or making public, of bad sentiments, destructive of the ends of society is the crime which society corrects.”).

155

Tenax, supra note 139, at 2; see also, e.g., Sullivan, supra note 102, at 12 (drawing the same distinction between oral and written communication).

156

Confusingly, the Founders sometimes referred to inalienable rights in an entirely different sense—namely, rights that could not be surrendered to the control of a monarch. See Campbell, supra note 13, at 96-98.

4 Annals of Cong. 934 (1794) (statement of Rep. James Madison); see also, e.g., Thomas Jefferson, A Bill for Establishing Religious Freedom (1779), in 2 The Papers of Thomas Jefferson, supra note 14, at 545, 546 (1950) (noting that “the opinions of men are not the object of civil government, nor under its jurisdiction”); Oliver Ellsworth, A Landholder No. 7 (Dec. 17, 1787), reprinted in 14 Documentary History of the Ratification, supra note 14, at 448, 451 (John P. Kaminski et al. eds., 1983) (“Civil government has no business to meddle with the private opinions of the people.”); Resolutions Adopted Upholding Freedom of Speech, Writing, and Publishing, Dec. 17, 1794, reprinted in Democratic-Republican Societies, supra note 74, at 148, 148-49 (“[T]he freedom of opinion is a right inherent in nature, and never was intended to be surrendered to government.”).

161

See, e.g., Thomas Cooper, A Treatise on the Law of Libel, at ix-x, xxii-xxiii (1830); Thomson, supra note 24, at 11, 13-14, 18-19.

The Founders thus referred interchangeably to the freedom to express “sentiments,” see, for example, Pa. Const. of 1776, ch. 1, § 12, and “thoughts and opinions,” Pa. Const. of 1790, art. IX, § 7. To the extent that statements of opinion received broader protection than statements of fact, it was because of a duty to tell the truth. See Rutherford, supra note 15, at 295 (“[U]nlawful lyes [include] . . . not only such falshoods, as will directly injure a man, or hinder his innocent benefit; but all such falshoods likewise, as are inconsistent with that tacit consent to tell him the truth.”).

166

See, e.g., Thomson, supra note 24, at 11-12 (“[M]en should be allowed to express those thoughts, with the same freedom that they arise. In other words—speak, or publish, whatever you believe to be truth.”); Albert Gallatin, The Speech of Albert Gallatin, a Representative from the County of Fayette, in the House of Representatives of the General Assembly of Pennsylvania, reprinted in 3 The Writings of Albert Gallatin 1, 6 (Henry Adams ed., 1879) (“Whether the opinion be right or wrong, as long as it is only an opinion, everybody has a right to express it.”). Alexander Addison drew a distinction between thought and speech, but he also, following Blackstone, limited his endorsement of speech restrictions to “bad sentiments.” See Addison, supra note 23, at 10 (“[L]iberty of private sentiment is still left; the disseminating or making public of bad sentiments, destructive of the ends of society, is the crime which society corrects.”).

167

Letter from Thomas Jefferson to David Humphreys (Mar. 18, 1789), in 14 The Papers of Thomas Jefferson, supra note 14, at 676, 678 (1958); see also Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790), in 18 The Papers of Thomas Jefferson, supra note 14, at 131, 132 (noting “an universal and almost uncontroverted position in the several states, [is] that the purposes of society do not require a surrender of all our [natural] rights”). Notably, Jefferson did not categorically reject governmental authority to punish malevolent expression. See Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 The Papers of Thomas Jefferson, supra note 14, at 440, 442 (1956) (“A declaration that the federal government will never restrain the presses from printing any thing they please, will not take away the liability of the printers for false facts printed.”).

168

Congressional Debates (Jan. 21, 1791) (statement of Rep. John Vining), in 14 Documentary History of the First Federal Congress, supra note 14, at 340 (William Charles DiGiacomantonio et al. eds., 1995). This debate occurred before the First Amendment was formally ratified, but this fact evidently made little difference to the members of the First Congress. See also Congressional Debates (Feb. 11, 1790) (statement of Rep. Elias Boudinot), in 12 Documentary History of the First Federal Congress, supra note14, at 288 (Helen E. Veit et al. eds., 1994) (“[I]t has been so lately contended, and settled, that the people have a right to assemble and petition for redress of grievances.”).

Id. Vining and Ames were opposing a proposal to prevent tax collectors “from interfering, either directly, or indirectly, in elections, further than giving their own votes, on penalty of forfeiting their offices.” Id. at 339 (statement of Rep. James Jackson). Some representatives enthusiastically supported the proposal, suggesting that it ought to be applied to other governmental officials, see id. at 340-41 (statement of Rep. Elbridge Gerry); id. at 341 (statement of Rep. John Laurance); id. at 342 (statement of Rep. Roger Sherman), thus protecting “the freedom of elections” from official interference, id. at 341 (statement of Rep. Michael Stone). The law did not prohibit speech, some proponents of the bill noted, because it merely placed a condition on office holding, see, e.g., id. at 340 (statement of Rep. Egbert Benson), although Roger Sherman advocated a broader ban on “the arts of electioneering,” id. at 339-40 (statement of Rep. Roger Sherman). The House ended up rejecting the measure.

171

Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 325 (Pa. 1788); see alsoAddison, supra note 94, at 50 (“If a man willfully, maliciously, and with intent to defame, publish an opinion not supported by fact, it is an offense.”); James Wilson, Of the Nature of Crimes; and the Necessity and Proportion of Punishments, in 2 Collected Works of James Wilson,supra note 85, at 1087, 1090 (“The law of nature, it is admitted on all hands, measures crimes by the intention, and not by the event.”); Extract from a Charge . . . by the Honorable Thomas M’Kean, Chief Justice of the Supreme Court, with the unanimous approbation of the other Judges, in Pa. Packet (Philadelphia), Apr. 19, 1785, at 3 (“Men therefore have only to take care in their publications, that they are decent, candid and true, that they are for the purpose of reformation and not of defamation, and that they have an eye solely to the public good.”).

172

8 Annals of Cong. 2097 (1798) (statement of Rep. John Allen).

173

Id. at 2098; see also id. (mentioning “liberty of the press and of opinion”).

Stone, supra note 9, at 16. This point is widely recognized, though any effort to appreciate Federalist motives must at least grapple with the ongoing tumult in France. See Kathryn Preyer, United States v. Callender:Judge and Jury in a Republican Society, in Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789, at 173, 187 (Maeva Marcus ed., 1992) (“Only present-mindedness or lack of imagination leads us to dismiss casually [Federalist] fears as paranoia.”). The Federalist effort to reauthorize the Sedition Act in 1801 further complicates this standard historical account. For a penetrating review of Federalist thought, see Lendler, supra note 35, at 419-25.

177

The Dissent of the Minority of the House of Representatives of the Commonwealth of Pennsylvania, from the Address to the President of the United States, Adopted by Said House, December, 1798, at 4 (Philadelphia, 1799).

178

The Independant (Dec. 11, 1798), Times & Alexandria Advertiser, Dec. 15, 1798; see also 10 Annals of Cong. 922 (1801) (statement of Rep. Joseph Nicholson) (“It was and might be further urged, that the act was only aimed at false and malicious libels, tending to defame the Government. He granted it; but who were to be the judges?”).

179

Thomson, supra note 24, at 25. Later, Thomson made a broader argument against regulations of expression. See id. at 81-84; see also, e.g., John Page, An Address to the Freeholders of GloucesterCounty 15 (Richmond, John Dixon 1799) (describing the Sedition Act as “unjust as well as unconstitutional” because it applied to those who criticized the government “patriotically, and conscientiously, and constitutionally”).

180

To be sure, Federalists generally preferred deferential rather than populist politics, and they abhorred the Democratic-Republican societies in the mid-1790s that claimed to speak on behalf of the people. But contrary to some portrayals, see James P. Martin, When Repression Is Democratic and Constitutional: The Federalist Theory of Representation and the Sedition Act of 1798, 66 U. Chi. L. Rev. 117, 134-35 (1999), these ideas did not come close to a view that individuals could or should be barred from discussing public affairs or criticizing the government in good faith, see Richard Buel Jr., Securing the Revolution: Ideology in American Politics, 1789-1815, at 93-112, 128-35, 244-61 (1972); Richard Buel Jr., Freedom of the Press in Revolutionary America: The Evolution of Libertarianism, 1760-1820, in The Press and the American Revolution 59, 89 (Bernard Bailyn & John B. Hench eds., 1981).

181

Addison, supra note 94, at 42; see also 10 Annals of Cong. 933 (1801) (statement of Rep. John Rutledge, Jr.) (“[E]very man has the privilege of expressing unreservedly whatever he thinks on political subjects.”).

182

The Trial of the Seven Bishops (1688) (opinion of Richard Allibond), in 12 A Complete Collection ofState Trials 183, 428 (London, T.B. Howell ed., 1816). For English statements against this view, see, for example,Jean Louis de Lolme, The Constitution of England, or An Account of the English Government 280 (London, T. Spilsbury 1775) (“[T]he English constitution . . . has allotted to the people themselves the province of openly canvassing and arraigning the conduct of those who are invested with any branch of public authority; and . . . has thus delivered into the hands of the People at large, the exercise of the Censorial power.”); and [Thomas Gordon], Letter No. 15 (Feb. 4, 1720), in 1 John Trenchard & Thomas Gordon, Cato’s Letters: or, Essays on Liberty, Civil and Religious, and Other Important Subjects 110, 111 (Ronald Hamowy ed., 1995) (“That men ought to speak well of their governors, is true, while their governors deserve to be well spoken of; but to do publick mischief, without hearing of it, is only the prerogative and felicity of tyranny: A free people will be shewing that they are so, by their freedom of speech.”). For similar statements by Supreme Court justices, see John Blair’s Charge to the Grand Jury of the Circuit Court for the District of Delaware (Oct. 27, 1794), in 2 The Documentary History of the Supreme Court of the United States, 1789-1800, supra note 49, at 485, 489 (Maeva Marcus ed., 1988) (“[W]hile men pay an external obedience to the laws, they have a right to think of them as they please, and even beyond this, to express their opinion decently, yet strongly, as a mean of obtaining an alteration . . . .”); Draft of John Jay’s Charge to the Grand Jury of the Circuit Court for the District of Virginia (before Apr. 22, 1793), in 2 Documentary History of the Supreme Court of the United States, 1789-1800, supra note 49, at 359, 364 (Maeva Marcus et al. eds., 1990) (“As free Citizens we have a Right to think and speake our Sentiments . . . in Terms . . . explicit plain and decorous.”); and Wilson, supra note 85, at 1046 (stating that every “citizen under a free government has a right to think, to speak, to write, to print, and to publish freely, but with decency and truth, concerning publick men, publick bodies, and publick measures”). An enormous literature addresses the political controversies in the seventeenth and eighteenth centuries from which this freedom emerged. See, e.g., Bogen, supra note 8, at 442-44, 446; Mayton, supra note 8, at 102-08; Michael E. Stevens, Legislative Privilege in Post-Revolutionary South Carolina, 46 Wm. & Mary Q. 71, 71-73 (1989). See generally Fredrick SeatonSiebert, Freedom of the Press in England 1476-1776: The Rise and Decline of Government Controls (1952).

183

For earlier discussions of the truth defense, see, for example, Letter from John Adams to William Cushing (Mar. 7, 1789), in Freedom of the Press, supra note 73, at 152, 153; Letter from John Marshall to Archibald Stuart (May 28, 1794), in 2 ThePapers of John Marshall 267, 268 (Charles T. Cullen & Herbert A. Johnson eds., 1977). For a discussion of a famous controversy in New York over the truth defense, see Kate Elizabeth Brown, Rethinking People v. Croswell: Alexander Hamilton and the Nature and Scope of “Common Law” in the Early Republic, 32 L. & Hist. Rev. 611 (2014). Some judges thought that “a defendant could establish the truth of the publication only to show that he lacked the requisite malicious intent.” David Jenkins, The Sedition Act of 1798 and the Incorporation of Seditious Libel into First Amendment Jurisprudence, 45 Am. J. Legal Hist. 154, 192 (2001); see, e.g., id. at 198-99 (describing the views of James Kent and Joseph Story).

184

H.R. Rep. No. 5-110, at 183 (1799); see 10 Annals of Cong. 920-21 (1801) (statement of Rep. Roger Griswold). Notably, some Federalists in January 1801 still held out hope that the presidential election would eventually swing their way after an impending deadlock between Jefferson and Burr. See James Roger Sharp, The Deadlocked Election of 1800: Jefferson, Burr, and the Union in the Balance 139-41 (2010).

185

Lakier, supra note 35, at 2180; see sources cited supra note 35. The few scholars who have noted possible differences between speech and press rights either have yet to illuminate their relationship, see, e.g., Anderson, supra note 6, at 490 & n.211, or have insisted that the freedom of speech was derived from the legislative privilege of speech and debate, see sources cited supra note 4.

See, e.g., Addison, supra note 23, at 4 (“We communicate our sentiments by words spoken, written or printed, or by pictures or other signs.”); see also Volokh, supra note 3, at 1059 (“The equivalence of symbolic expression and verbal expression is consistent with the First Amendment’s original meaning.”). The fact that expressive and non-expressive aspects of natural liberty were both subject to regulation in the promotion of the public good negated the need for a distinction between “speech” and “conduct.” Cf. Frederick Schauer, Speech and “Speech”—Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language, 67 Geo. L.J. 899, 902-03 (1979) (“In order that the first amendment be applied effectively to carve out a category of activity for special protection, consideration must be given to the meaning of the word ‘speech’ . . . .”). Some Founders denounced theater bans, for instance, as obstructing “the natural right of every freeman to dispose of his time and money, according to his own taste and disposition, when not obnoxious to the real interests of society,” without any mention of the expressiveness of theater performance. To the Honorable the General Assembly of Pennsylvania, the Subscribers Being a Committee of the Dramatic Association . . . , Pa. Packet (Philadelphia), Feb. 17, 1789, at 3. Moreover, theater supporters emphasized the permissibility of governmental regulation to promote the public good. See, e.g., Arguments in Favour of the Drama, Pa. Packet (Philadelphia), Feb. 17, 1789, at 3 (removing a ban on theater would still permit theaters to “be regulated,” because “every thing that has an immoral tendensy should be prohibited;—every exceptionable play, now extant, should be altered, or rejected, and none but those that have the good of mankind for their object, should be acted”). For an analysis of mid-1790s controversies about raising liberty poles, see Cornell, supra note 82, at 922-32.

An Old Whig IV, Indep. Gazetteer (Philadelphia), Oct. 27, 1787, reprinted in 13 Documentary History of the Ratification, supra note 14, at 497, 501 (John P. Kaminski & Gaspare J. Saladino eds., 1981). Benjamin Rush lamented that combination, writing in 1777 that Pennsylvania’s “Bill of Rights has confounded natural and civil rights in such a manner as to produce endless confusion in society.” Benjamin Rush, Observations upon the Present Government of Pennsylvania, in Four Letters to the People of Pennsylvania 3 (Philadelphia, Styner & Cist 1777).

The Founders also often mentioned the freedom of the press as an obligation of printers to publish all items “conducive of general Utility,” without discrimination among writers. Livingston, supra note 139, at 81. See generally Robert W. T. Martin, The Free and Open Press: The Founding of Democratic Press Liberty, 1640-1800 (2001) (presenting a scholarly account of the development of the concept of the free press). This usage was prevalent, but it related to the public norms applicable to printers, not limitations on governmental power, and it seems to have had no direct relationship to original understandings of the First Amendment.

197

Pa. Const. of 1776, art. 12 (“[T]he people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.”); see also Complete Bill of Rights, supra note 73, at 93 (presenting similar proposals of North Carolina, Rhode Island, Virginia, and the Pennsylvania minority). For a history of this provision, see Smith, supra note 8, at 58-63. Scholars have elided the distinct meanings of these clauses. See, e.g., Levy, supra note 3, at 204; Volokh, supra note 3, at 1080-81. Other states opted for a simple declaration in favor of the liberty of the press. See Anderson, supra note 6, at 464-65, 538-41. Vermont, which had asserted its independence from New York, was the only other state to invoke the freedom of speech in its constitution. See Vt. Const. of 1786; Vt. Const. of 1777, ch. 1, § 14. For John Adams’s earlier proposal of a nearly identical provision, see John Adams, The Report of a Constitution or Form of Government for the Commonwealth of Massachusetts (Sept. 1, 1779), reprintedin 4 The Works of John Adams 219, 227 (Charles Francis Adams ed., Boston, Charles C. Little & James Brown 1851) (“The people have a right to the freedom of speaking, writing, and publishing their sentiments. The liberty of the press, therefore, ought not to be restrained.”). For a brief history of this proposal, see Clyde Augustus Duniway, The Development of Freedom of the Press in Massachusetts 133-36 (1906).

To the Citizens of Virginia, Winchester Va. Gazette, Feb. 22, 1788, reprinted in 8 Documentary History of the Ratification, supra note 14, at 404-05 (1988); cf. Letter from John Adams to William Cushing (Mar. 7, 1789), in Freedom of the Press, supra note 73, at 152, 153 (“[I]f the jury found [the putatively libellous statements] true and that they were published for the Public good, they would readily acquit.”); Cincinnatus I: To James Wilson, Esquire, N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification, supra note 14, at 160, 163 (John P. Kaminski et al. eds., 2003) (warning that without a jury the government “will easily find pretexts” to restrain “what it may please them to call—the licentiousness of the press”).

SeeR. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice 97-98 (2015).

208

Addison, supra note 94, at 29; see Helmholz, supra note 207, at 96 (mentioning English invocations of this idea); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843, 854 (1978) (describing the custom of the common law as “the most reliable evidence of the content of natural law”); see also Larry D. Kramer, The Supreme Court, 2000 Term—Foreword:We the Court, 115 Harv. L. Rev. 5, 39-40 (2001) (noting that natural rights required political recognition before entering the customary constitution).

209

Wooddeson,supra note 13, at 28; see, e.g., 1 William Blackstone, Commentaries *74 (observing that the common law “probably was introduced by the voluntary consent of the people”); Sullivan, supra note 102, at 16 (“The common law, is a system of commonly received opinions, established by the common consent of the people, without acts of the legislature, and defined by practice in the courts of law.”); James Wilson, Of Municipal Law, in 1 Collected Works of James Wilson, supra note 85, at 549, 569 (“A customary law carries with it the most unquestionable proofs of freedom in the country, which is happy enough to be the place of its abode.”).

210

See Reid, supra note 74, at 22. Overlooking the Founders’ appreciation for the substantial indeterminacy of natural law, James Whitman asserts that their writings about custom and reason lacked coherence and intelligibility and were, instead, “a confused mélange.” James Q. Whitman, Why Did the Revolutionary Lawyers Confuse Custom and Reason?, 58 U. Chi. L. Rev. 1321, 1323, 1367 (1991). This position leads Whitman to the bold conclusion that “[t]here is little point in trying to identify the underlying logic of American legal thinking in the revolutionary era,” and “[s]tudies that purport to explain the Founders’ conception of the Constitution are thus doomed to mislead.” Id. at 1366-67. In my view, Whitman gives inadequate attention both to the recognition of underdeterminacy in reason, which made it far easier to claim simultaneous fidelity to both reason and custom, and to the rational need for established legal rules, including customary rules. Locke and Blackstone, for instance, each insisted that human law must conform to natural law, that natural law is a highly underdeterminate source of law, and that reason dictates that governments must act pursuant to established rules. See 1 William Blackstone, Commentaries *42-55, *67-71; John Locke, Second Treatise of Government §§ 135-137 (1690), reprinted in John Locke, supra note 111, at 159-61.

211

See James Wilson, Of the Law of Nations, in 1 Collected Works of James Wilson, supra note 85, at 526, 529; see also, e.g., 1 William Blackstone, Commentaries *41 (“This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other . . . . [N]o human laws are of any validity, if contrary to this.”).

212

Hamburger,supra note 113, at 38-39.

213

John Phillip Reid, Controlling the Law: Legal Politics in Early National New Hampshire 25 (2004) (quoting Dudley).

214

Hay, supra note 152, at 9.

215

Of course, the divide between lawyers and non-lawyers is stylized, just like my distinction between elites and non-elites. See Cornell, The People’s Constitution vs. The Lawyer’s Constitution, supra note 9, at 309.

216

See supra notes 200-201 and accompanying text.

217

Addison, supra note 94, at 48; see also, e.g., William Paterson, Second Draft Opinion on the Sedition Law of 1798, reprintedin Williamjames Hull Hoffer, William Paterson and the National Jurisprudence: Two Draft Opinions on the Sedition Law of 1798 and the Federal Common Law, 22 J. Sup. Ct. Hist. 36, 48 (1997) (“[T]he freedom of the press is a relative term; and refers to an existing rule. We must first know in what the freedom of the press consists . . . .The com. law gives the rule, which is well known to every part of the U. States.”). Federalist arguments about judicial power had drifted in some respects by the late 1790s. See Larry D. Kramer, Marbury and the Retreat from Judicial Supremacy, 20 Const. Comment. 205, 220-21 (2003). But struggles between lawyerly and non-lawyerly modes of constitutional interpretation were already prominent by the late 1780s. See Cornell, The People’s Constitution vs. The Lawyer’s Constitution, supra note 9, at 304-11.

218

James Madison, The Report of 1800 (Jan. 7, 1800), in 17 The Papers of James Madison 303, 309 (David B. Mattern et al. eds., 1991). The context of this passage was a defense of state interpretive authority, but Madison’s language nicely captures the essence of his attack on using the common law to delineate the scope of speech and press freedoms.

219

Id. at 336.

220

Id. at 338. This analysis came in the midst of Madison’s discussion of “the proper boundary between the liberty and licentiousness of the press,” id. at 337, and the degree to which states, as a matter of “wis[e] . . . policy,” id. at 338, had properly chosen to underenforce speech-restrictive rules. The Virginia Report of 1800 never took the broad, affirmative position that any restriction of political speech necessarily violates speech and press freedoms. Rather, it presented a narrower, negative argument that American protections for expressive freedom ought to be “greater” than in England, id. at 337, and were, in practice, “not . . . confined to the strict limits of the common law,” id. at 338.

221

Id. at 337. Relatedly, Republicans denied that judges were the exclusive or supreme arbiters of constitutional meaning. See Kramer, supra note 217, at 222.

222

Madison, supra note 218, at 337, 339.

223

See id. at 339 (“[The First Amendment] was meant as a positive denial to Congress, of any power whatever on the subject.”).

224

For the defeat of proposals to guarantee the freedom of the press, see 2 The Records of the Federal Convention of 1787, at 341, 587-88, 617 (Max Farrand ed., 1911). For a more detailed account, see Paul Finkelman, James Madison and the Bill of Rights: A Reluctant Paternity, 9 Sup. Ct. Rev. 301, 304-08 (1990).

225

See, e.g., George Mason, Objections to the Constitution of Government Formed by the Convention, in 8 Documentary History of the Ratification, supra note 14, at 43, 43 (John P. Kaminski & Gaspare J. Saladino eds., 1988). Anti-Federalists “were by no means a homogenous or cohesive group,” but “common themes run through many of their writings.” Wesley J. Campbell, Commandeering and Constitutional Change, 122 Yale L.J. 1104, 1127-28 (2013). For the leading treatment of Anti-Federalism, see Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (1999). For a concise history of the Bill of Rights, see Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788, at 435-68 (2010).

226

See, e.g., Pennsylvania Ratification Convention Debates (Nov. 28, 1787) (statement of Robert Whitehill), in 13 Documentary History of the Ratification, supra note 14, at 399, 402 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (stating that “from the nature of their power they must necessarily be the judges, what laws are necessary and proper”); Pennsylvania Ratification Convention Debates (Dec. 4, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification, supra note 14, at 467, 468 (Merrill Jensen ed., 1976) (“The powers of Congress are unlimited and undefined. They will be the judges of what is necessary and proper.”); Virginia Ratification Convention Debates (June 10, 1788) (statement of James Monroe), in 9 Documentary History of the Ratification, supra note 14, at 1092, 1112 (John P. Kaminski & Gaspare J. Saladino eds., 1990) (stating that Congress would be “not restrained or controuled from making any law, however oppressive in its operation, which they may think necessary to carry their powers into effect”).

227

Brutus II, N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification, supra note 14, at 154, 156 (John P. Kaminski et al. eds., 2003); see also, e.g., Cincinnatus I: To James Wilson, Esquire, N.Y. J., Nov. 1, 1787, reprinted in id. at 160, 162 (“The conventions that made the state and the general constitutions, sprang from the same source, were delegated for the same purpose . . . .”).

228

An Officer of the Late Continental Army, Indep. Gazetteer (Philadelphia), Nov. 6, 1787, reprinted in 2 Documentary History of the Ratification, supra note 14, at 210, 211 (Merrill Jensen ed., 1976). The following year, Findley tied the “right of every man to publish his sentiments on public proceedings” to the requirement of a jury trial, but he did not suggest that publishers were constitutionally immune from prosecution even with a jury. Pennsylvania Assembly Debates (Sept. 1788) (statement of Rep. William Findley), in Respublica v. Teischer, 1 U.S. (1 Dall.) 335, 335-36 n.* (Pa. 1788). For other concerns about the manipulations of libel laws, see Virginia Ratification Convention Debates (June 16, 1788) (statement of George Mason), in 10 Documentary History of the Ratification, supra note 14, at 1325, 1326 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (noting that Congress might construe its powers to punish “any writer [who] should dare to stand forth and expose to the community at large, the abuses of those powers”); and Pennsylvania Ratification Convention Debates (Dec. 4, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification,supra note 14, at 467, 468 (Merrill Jensen ed., 1976) (“The liberty of the press is not secured. Congress may license the press, and declare what shall be a libel.”). Others located a possible grounding for this power in the Speech and Debate Clause. See Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of Robert Whitehill), in 2 Documentary History of the Ratification,supra note 14, at 454, 454 (Merrill Jensen ed., 1976) (“The press is by this clause restrained; because the members shall not be questioned for speeches in any other place.”).

229

A Plebeian, An Address to the People of the State of New York (Apr. 17, 1788), in 20 Documentary History of the Ratification, supra note 14, at 942, 961 (John P. Kaminski et al. eds., 2004); Federal Farmer No. 16 (Jan. 20, 1788), in id. at 1059.

230

See, e.g., Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of Robert Whitehill), in 2 Documentary History of the Ratification, supra note 14, at 454, 454 (Merrill Jensen ed., 1976) (stating that Congress, under the Copyright Clause, “may license the press, no doubt; and under licensing the press, they may suppress it”).

231

See, e.g., Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 30, 1788) (statement of William Lenoir), in 4 Debates in the Several State Conventions, supra note 76, at 203 (“[Congress] have also an exclusive legislation in their ten miles square . . . . Should any one grumble at their acts, he would be deemed a traitor, and perhaps taken up and carried to the exclusive legislation, and there tried without a jury.”); Virginia Ratification Convention Debates (June 16, 1788) (statement of George Mason), in 10 Documentary History of the Ratification,supra note 14, at 1325, 1326 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (“[C]ould they not . . . lay a dangerous restriction on the press? Might they not even bring the trial of this restriction within the ten miles square, when there is no prohibition against it?”).

232

But see An Old Whig III, Indep. Gazetteer (Philadelphia), Oct. 20, 1787, reprinted in 13 Documentary History of the Ratification, supra note 14, at 425, 426-27 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (identifying the Supremacy Clause as a potential threat to the freedom of the press).

233

Cf. Address of the Minority of the Maryland Convention, Annapolis Md. Gazette, May 1, 1788, reprintedin 17 Documentary History of the Ratification, supra note 14, at 242, 244 (John P. Kaminski & Gaspare J. Saladino eds., 1995) (“In prosecutions in the federal courts for libels, the constitutional preservation of this great and fundamental right may prove invaluable.”); Cincinnatus I: To James Wilson, Esquire, N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification,supra note 14, at 160, 163-64 (John P. Kaminski et al. eds., 2003) (describing press freedom as the “only” security “that will save any future printer from the fangs of power” because otherwise “the judges might put the verdict of a jury out of the question”).

234

An exception was the frequent Anti-Federalist inclusion of a “right to freedom of speech, and of writing and publishing their sentiments,” or similar phrases, in their lengthy lists of draft amendments. See Virginia Convention Amendments (June 27, 1788), in 18 Documentary History of the Ratification, supra note 14, at199, 202 (John P. Kaminski & Gaspare J. Saladino eds., 1995); see also Proposals from the State Conventions, inComplete Bill of Rights, supra note 73, at 93 (presenting similar proposals by North Carolina, Rhode Island, and the Pennsylvania minority); The Society of Western Gentlemen Revise the Constitution, Va. Indep. Chron. (Richmond), Apr. 30, 1788, reprintedin 9 Documentary History of the Ratification, supra note 14, at 769, 773 (John P. Kaminski & Gaspare J. Saladino eds., 1990) (“That the people have a right to the freedom of speech, of writing, and publishing their sentiments; therefore printing presses shall not be subject to restraint, other than liableness to legal prosecution, for false facts printed and published.”). A decade earlier, some town returns in Massachusetts mentioned the omission of the freedom of speech (or speaking, writing, and publishing) in the state’s proposed constitution. See The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, at 682, 742, 749-50, 762, 789, 795, 856 (Oscar Handlin & Mary Handlin eds., 1966).

235

Federal Farmer No. 16 (Jan. 20, 1788), in 20 Documentary History of the Ratification,supra note 14, at 1051, 1057-58 (John P. Kaminski et al. eds., 2004); see also, e.g., A Plebeian, An Address to the People of the State of New York (Apr. 17, 1788), in 20 Documentary History of the Ratification, supra note 14, at 942, 961-62 (John P. Kaminski et al. eds., 2004) (focusing on fundamental positive rights); Brutus II, N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification, supra note 14, at 154, 156-59 (John P. Kaminski et al. eds., 2003) (same); Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), in 12 The Papers of Thomas Jefferson, supra note 14, at 438, 440 (1955) (same). Many Anti-Federalists mentioned the freedom of conscience, which was an inalienable natural right that had assumed a place in the customary constitution (through the Toleration Act, for instance). McAffee asserts that Federal Farmer’s “same analysis applied to the rights that were considered natural and inalienable,” McAffee, supra note 41, at 278, but McAffee errs by concluding that Federal Farmer viewed press freedom as a retained natural right. See supra note 193.

[Jay], supra note 75, at 933; see also, e.g., Uncus, Md. J. (Baltimore), Nov. 9, 1787, reprinted in 14 Documentary History of the Ratification, supra note 14, at 76, 78 (John P. Kaminski & Gaspare J. Saladino eds., 1983) (declaring that freedom of the press is “a privilege, with which every inhabitant is born;-a right . . . too sacred to require being mentioned”); Foederal Constitution, Pa. Gazette (Philadelphia), Oct. 10, 1787, reprinted in 13 Documentary History of the Ratification,supra note 14, at362, 363 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (“[T]he Liberty of the Press would have been an inherent and political right, as long as nothing was said against it.”); South Carolina Ratification Convention Debates (Jan. 18, 1788) (statement of Charles Cotesworth Pinckney), in Complete Bill of Rights, supra note 73, at 98, 98 (“The general government . . . has no power to take away the liberty of the press.”).

The Federalist No. 84, supra note 114, at 579 (Alexander Hamilton); see also, e.g., A Native of Virginia:Observations upon the Proposed Plan of Federal Government (Apr. 2, 1788), in 9 Documentary History of the Ratification, supra note 14, at 655, 691 (John P. Kaminski & Gaspare J. Saladino eds., 1990) (“[A]s the Congress can claim the exercise of no right which is not expressly given them by this Constitution; they will have no power to restrain the press in any of the States; and therefore it would have been improper to have taken any notice of it.”); [Robert Sherman], A Citizen of New Haven, Conn. Courant (Hartford), Jan. 7, 1788, reprinted in 3 Documentary History of the Ratification, supra note 14, at 524, 525 (Merrill Jensen ed., 1978) (“The liberty of the press can be in no danger, because that is not put under the direction of the new government.”).

242

See James Wilson, Speech at a Public Meeting in Philadelphia (Oct. 6, 1787), in 13 Documentary History of the Ratification, supra note 14, at 337, 340 (John P. Kaminski & Gaspare J. Saladino eds., 1981); Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification, supra note 14, at 454, 454-55 (Merrill Jensen ed., 1976); [James Iredell], Marcus No. 4, Norfolk & Portsmouth J., Mar. 12, 1788, reprinted in 16 Documentary History of the Ratification, supra note 14, at 379, 382 (John P. Kaminski & Gaspare J. Saladino eds., 1986) (“[T]he future Congress will have no other authority over [the press] than to secure to authors for a limited time the exclusive privilege of publishing their works.”). But Federalists generally denied only federal power over the freedom of the press.

243

The Federalist No. 84, supra note 114, at 580 n.* (Alexander Hamilton). Other Federalists equated press freedom with freedom from “the restraint of any license.” Hugh Williamson, Speech at Edenton, N.C., N.Y. Daily Advertiser, Feb. 25, 1788, reprintedin 16 Documentary History of the Ratification, supra note 14, at 201, 202 (John P. Kaminski & Gaspare J. Saladino eds., 1986); see, e.g., Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification, supra note 14, at 454, 455 (Merrill Jensen ed., 1976) (“[W]hat is meant by the liberty of the press is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government or the safety, character, and property of the individual.”).

244

See infra notes 122-128 and accompanying text.

245

The Federalist No. 84, supra note 114, at 578 (Alexander Hamilton); see Shain, supra note 158, at 127; see, e.g., Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 29, 1788) (statement of [Archibald] Maclaine), in 4 Debates in the Several State Conventions, supra note 76, at 160, 166-67; John De Witt No. 2, Am. Herald (Boston), Oct. 29, 1787, reprinted in 4 Documentary History of the Ratification, supra note 14, at 156, 158-59 (John P. Kaminski & Gaspare J. Saladino eds., 1997); see also Terry Brennan, Natural Rights and the Constitution: The Original “Original Intent,” 15 Harv. J.L. & Pub. Pol’y 965, 988-97 (1992) (collecting dozens of examples).

See Finkelman, supra note 224, at 336-37; see also Cornell, supra note 225, at 158-63 (explaining the modesty of the Bill of Rights); see also, e.g., Letter from Fisher Ames to Thomas Dwight (June 11, 1789), in 16 Documentary History of the First Federal Congress, supra note 14, at748, 749 (Charlene Bangs Bickford et al. eds., 2004) (“Upon the whole, it may do some good towards quieting men who attend to sounds only, and may get the mover [James Madison] some popularity—which he wishes.”); Letter from Pierce Butler to James Iredell (Aug. 11, 1789), in 16 Documentary History of the First Federal Congress, supra, at 1288, 1289 (Charlene Bangs Bickford et al. eds., 2004) (“A few milk-and-water amendments have been proposed by Mr. M[adison], such as liberty of conscience, a free press, and one or two general things already well secured.”).

248

See Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), in 14 The Papers of Thomas Jefferson, supra note 14, at 659, 660 (1958) (“This instrument forms us into one state as to certain objects, and gives us a legislative and executive body for these objects. It should therefore guard us against their abuses of power within the feild [sic] submitted to them.”). Scholars have long disagreed about Madison’s private ambivalence about a bill of rights. See Stuart Leibiger, James Madison and Amendments to the Constitution, 1787-1789: “Parchment Barriers,” 59 J.S. Hist. 441, 441-42 (1993) (reviewing the scholarly debate).

Id. at 825 (“[I]ndependent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights”). Scholars often misattribute to Madison the idea that enumerating a right in the Constitution was necessary and sufficient for its judicial enforceability against contrary legislation. See, e.g., Michael W. McConnell, Natural Rights and the Ninth Amendment: How Does Lockean Legal Theory Assist in Interpretation?, 5 N.Y.U. J.L. & Liberty 1, 19-20 (2010). Both the wording and the context of Madison’s statement, however, indicate that “Madison was making a point about judicial psychology and judicial politics, not judicial duty.” Jud Campbell, Judicial Review and the Enumeration of Rights, 15 Geo. J.L. & Pub. Pol’y 569, 571 (2017). Madison, in other words, was addressing the same types of concerns that Alexander Hamilton mentioned in TheFederalist regarding the “natural feebleness” of the judiciary, which Hamilton described as “in continual jeopardy of being overpowered, awed or influenced by [the] coordinate branches . . . .” The Federalist No. 78, supra note 114, at 523 (Alexander Hamilton).

Madison also singled out the freedom of the press in a set of three rights that would apply against state governments, again suggesting an intent to treat speech and press freedoms differently. See Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress, supra note 14, at 818, 826 (Charlene Bangs Bickford et al. eds., 1992).

256

Proposal by [Roger] Sherman to House Committee of Eleven (July 21-28, 1789), in Complete Bill of Rights,supra note 73, at 83, 83.

See generally A. P. Martinich, Four Senses of ‘Meaning’ in the History of Ideas: Quentin Skinner’s Theory of Historical Interpretation, 3 J. Phil. Hist. 225 (2009) (classifying the four types of “meaning” in the history of ideas); Lawrence B. Solum, Intellectual History as Constitutional Theory, 101 Va. L. Rev. 1111 (2015) (examining the role of intellectual history in constitutional theory). Prompted by critics, see, e.g., Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 215-16 (1980), contemporary originalism scholarship focuses largely on the original “meanings” of constitutional provisions rather than the Framers’ intentions. The distinction between intentions and meanings is somewhat porous, however, considering that Madison—a native speaker of the language of eighteenth-century American constitutionalism—tried to draft a provision with the meaning that he intended. See Gienapp, supra note 10, at 938 & n.15; Solum, supra, at 1134-36.

Hortensius [George Hay], An Essay on the Liberty of the Press 38 (Philadelphia, Aurora Office 1799).

266

The Federalist No. 84, supra note 114, at 579 (Alexander Hamilton).

267

Id. at 580; see also Cooper v. Telfair, 4 U.S. (4. Dall.) 14, 18 (1800) (opinion of Chase, J.) (“The general principles contained in the constitution are not to be regarded as rules to fetter and controul; but as matter merely declaratory and directory . . . .”); 3 Documentary History of the Ratification, supra note 14, at 471, 472-73 (Merrill Jensen ed., 1978) (making a similar point); [Webster], supra note 140, at 484, 490 (“[A]ny restriction of [Congressional] power by a general indefinite expression, is a nullity—mere formal nonsense.”). In The Federalist, Hamilton expressed contradictory views, stating both that without judicial protection “the reservations of particular rights or privileges would amount to nothing,” The Federalist No. 78, supra note 114, at 524 (Alexander Hamilton), and that placing “the whole power of the proposed government . . . in the hands of the representatives of the people . . . is the essential, and after all the only efficacious security for the rights and privileges of the people which is attainable in civil society,” The Federalist No. 28, supra note 114, at 178 (Alexander Hamilton).

Addison, supra note 94, at 48. That stance, however, may be less revealing of original meaning than of the emergent Federalist quest for judicial supremacy, which sought to separate constitutional interpretation from matters of policy. Cf. Cornell, The People’s Constitution vs. The Lawyer’s Constitution, supra note 9, at 307 (“Elite legal culture in the Founding Era, particularly among Federalists, was designed to shore up a basic distinction between law and politics . . . . Proponents of popular constitutionalism generally sought to eliminate this distinction . . . .”); Iredell, supra note 49, at 344 (distinguishing “considerations of policy” from “questions of law”).

274

This account of the “original meaning” of the First Amendment is subject to the caveats mentioned in Part I regarding elite sources.

As one scholar observes, “The tie between legislative privilege and the first amendment was asserted as early as 1799 by George Hay.” Bogen, supra note 8, at 435 (citing [Hay], supra note 265). True, but Hay was defining the meaning of the word “freedom,” not the provenance of the term “freedom of speech.” [Hay], supra note 265, at 42 (“[T]he meaning of the word freedom, is precisely and unequivocally established by the constitution itself.”). Hay argued that this “freedom” was secured through “a total exemption from the control of any law, or the jurisdiction of any court.” Id. John Thomson also analogized to legislative privilege without suggesting that it was the originating concept for the freedom of speech. See Thomson, supra note 24, at 19-20, 76-77.

See, e.g., Pa. Const. of 1790, art. IX, § 7 (declaring the right to speak on “any subject”); 3 Joseph Story, Commentaries on the Constitution of the United States § 1874 (1833) (recognizing “a right to speak, write, and print his opinions upon any subject whatsoever”); Tucker, supra note 133, at 376 (“Liberty of speech and of discussion in all speculative matters, consists in the absolute and uncontrollable right of speaking, writing, and publishing, our opinions concerning any subject, whether religious, philosophical, or political . . . .”); Wilson, supra note 85, at 1055-56 (stating that natural liberty existed for man to accomplish “those purposes . . . as his inclination and judgment shall direct”); Letter from William Cushing to John Adams (Feb. 18, 1789), in Freedom of the Press, supra note 73, at 147, 150 (“[D]oes [press freedom] not comprehend a liberty to treat all subjects and characters freely, within the bounds of truth?”). A polity could, of course, choose to reaffirm only a portion of this natural liberty in its declaration of rights. See, e.g., Vt. Const. of 1786, ch. I, § V (“That the people have a right of freedom of speech and of writing and publishing their sentiments, concerning the transactions of government . . . .”). Again, my focus is the meanings of the Speech and Press Clauses, not the motives for enacting them. See supra note 58 (explaining my approach).

Individuals, by contrast, had natural rights—and particularly the right of reputation—that could be abridged even through well-intentioned statements, thus placing a natural-law qualification on the inalienable right to make well-intentioned statements.

284

See sources cited supra note 182.

285

Examples include profane swearing bans, blasphemy laws, restrictions on advertising, restrictions on theater performances, and rules against making certain agreements on Sundays. See 8 Annals of Cong. 2148-49 (1798) (statement of Rep. Harrison Gray Otis) (recounting many extant legal restrictions on speech); Constitution and Laws of the State of New Hampshire; Together with the Constitution of the United States 339 (1805) (prohibiting lotteries and any advertising thereof); 3 Laws of the Commonwealth of Pennsylvania, 1700-1810, at 177-78 (1810) (forbidding “any worldly employment or business whatsoever” on Sunday, as well as profanity and swearing at all times).

286

See Michael W. McConnell, Tradition and Constitutionalism Before the Constitution, 1998 U. Ill. L. Rev. 173, 196; Rakove, supra note 77, at 193. Indeed, the Ninth Amendment may reject “the necessity or superiority of enumeration.” Kurt T. Lash, The Lost History of the Ninth Amendment 82 (2009). Some people suggested that enumeration would facilitate the judicial enforcement of rights, see, e.g., An Old Whig II, Indep. Gazetteer (Philadelphia), Oct. 17, 1787, reprinted in 13 Documentary History of the Ratification, supra note 14, at 399, 402 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (“[W]ho can overrule [Congress’s] pretensions?-No one, unless we had a bill of rights to which we might appeal, and under which we might contend against any assumption of undue power and appeal to the judicial branch of the government to protect us by their judgements.”), but these claims surely referred to legal rights and did not intimate that judges would assume the position of deciding which restrictions of natural liberty promoted the public good, see supra notes 232-236 and accompanying text.

Federalists made this point over and over in the Sedition Act debates. See, e.g., H.R. Rep. No. 5-110, at 183 (1799) (contending that press freedom had never extended, “according to the laws of any State . . . to the publication of false, scandalous, and malicious writings against the Government”); Iredell, supra note 49, at 348 (arguing that state constitutions and bills of rights were the “strongest proof . . . that the freedom of the press does not require that libellers shall be protected from punishment”).

289

See supra notes 124-136 and accompanying text.

290

But see Bogen, supra note 8, at 458 (“At a minimum, the freedom of speech meant that restrictions on speech are impermissible unless necessary to accomplish a legitimate function of government, and that the courts rather than the legislature should ultimately determine that necessity.”).

291

Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (opinion of Iredell, J.). The limited nature of Founding Era judicial review is well known. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 140-42 (1893); see also Christopher R. Green, Clarity and Reasonable Doubt in Early State-Constitutional Judicial Review, 57 S. Tex. L. Rev. 169, 172-83 (2015) (documenting the strong presumption of constitutionality evident in early state court decisions); McGinnis, supra note 62, at 880-904 (explaining that early judges would find unconstitutionality only when constitutional meaning was “clear”)Notably, the clarity of constitutional law did not depend solely on text but “drew on well-established principles of the customary constitution as well.” Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review99 (2004).

292

Calder, 3 U.S. (3 Dall.) at 399 (opinion of Iredell, J.).

293

See, e.g., Campbell, supra note 13, at 99-104.

294

Consequently, Founding Era judges repeatedly upheld narrowly drawn sedition laws. See Blumberg, supra note 8, at 1-6. Wendell Bird argues that some Federalist judges rejected the constitutionality of sedition laws. See Bird, supra note 3, at 474. Bird’s research is prodigious, but his evidence merely shows that Federalist judges accepted the freedom of opinion, not that they rejected the constitutionality of narrowly drawn sedition laws. See supra notes 166-187 and accompanying text. Bird, like Leonard Levy before him, “fails to recognize that it was possible for the framers of the first amendment [among other Founders], influenced by republican political theory, to expand the protection for freedom of expression well beyond the narrow boundaries of the English common law while retaining some conception of seditious libel.” Rabban, supra note 8, at 796.

295

But see supra notes 36 & 41 and accompanying text. To be sure, if viewed in isolation from its context, the First Amendment’s text could be stretched to eliminate federal power to regulate speech. All that a reader would have to do, after all, is disregard the limits on expressive freedom imposed by natural law and social obligation, leading to a view that the First Amendment categorically prohibited any interference with expression. See Tucker, supra note 133, at 386.

296

See Campbell, supra note 152. Although Republicans prevailed in their inventive interpretation of the First Amendment, an understanding of speech freedom as a natural right remained prominent in the nineteenth century. See, e.g., Cooper, supra note 161, at 41; 1 Benjamin L. Oliver, The Rights of An American Citizen 222 (1832).

See, e.g., The Address of the Minority in the Virginia Legislature to the People of that State; Containing a Vindication of the Constitutionality of the Alien and Sedition Laws 12 (1799); Addison, supra note 94, at 44; Paterson, supra note 217, at 48; cf. The Federalist No. 84, supra note 114, at 575, 579 (Alexander Hamilton) (expressing concern that bills of rights could be “dangerous” because they could “afford a colourable pretext to claim more [governmental powers] than were granted”).

See, e.g., Wortman, supra note 24, at 259 (stating that public officials can sue for libel “upon the same footing with a private individual,” given that “[t]he character of every man should be deemed equally sacred, and of consequence entitled to equal remedy”); Tucker, supra note 133, at 237-38 (same); cf. Thomson, supra note 24, at 81-84 (calling for unimpeded public debate about public figures).

See generally Randy E. Barnett, The Gravitational Force of Originalism, 82 Fordham L. Rev. 411, 420-31 (2013) (arguing that originalism can exert a “gravitational force” on doctrine, even when original meaning does not explicitly form the basis of judicial decisions).

See generally United States v. Eichman, 496 U.S. 310 (1990) (invalidating a federal law that criminalized flag burning); Texas v. Johnson, 491 U.S. 397 (1989) (holding that flag burning is protected expression under the First Amendment); John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482 (1975) (analyzing flag-desecration cases). Similarly, the government can impose criminal penalties on “fighting words”—i.e., speech likely to provoke violence—but it cannot target a more limited set of fighting words that the government finds especially objectionable. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

316

An important qualification is that the government generally cannot justify speech-suppressing laws based on communicative harms. This principle finds no historical support unless one supposes that its adoption, in the aggregate, promotes the public good.

The same pattern has been true of press freedoms. In the early twentieth century, the scope of the rule against prior restraints expanded beyond just bans on licensing regimes. See Near v. Minnesota, 283 U.S. 697 (1931). At the same time, the Court recognized that countervailing governmental interests can sometimes justify prior restraints. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (collecting cases). Similarly, procedural due process rights have vastly expanded in scope (covering “new property,” for instance), while now providing only a “flexible” degree of “procedural protections as the particular situation demands,” Matthews v. Eldridge, 424 U.S. 319, 321 (1976), rather than an inflexible set of common-law procedural rules. One could make a similar argument about many other rights.

320

See, e.g., Hugo Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 874 (1960); see also Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245 (arguing that the First Amendment is absolute within the domain of self-governance).

321

See generally Ely, supra note 310.

322

See supra note 311 and accompanying text.

323

Some proponents of more robust speech doctrine in the early twentieth century took this approach, emphasizing the aggregate social benefits of speech-protective doctrines. See White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America, supra note 60, at 316-21. But a weakness in this approach was the indeterminacy of questions about the public good and doubts about why judges were better situated than legislators to make these types of assessments. Id. at 322.

Id.; see also, e.g., United States v. Alvarez, 567 U.S. 709, 717-18, 722-23 (2012) (plurality opinion) (summarizing the same idea and applying it to false statements).

328

See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2229 (2015). The issue in Reed was how to identify “content-based” speech restrictions—a concept aptly described as “the keystone of First Amendment law.” Kagan, supra note 70, at 443; see also Seth F. Kreimer, Good Enough for Government Work: Two Cheers for Content Neutrality, 16 U. Pa. J. Const. L. 1261, 1263 n.2 (2014) (collecting sources). Opting for a broader, more speech-protective definition, the Court declared that the First Amendment “expressly targets the operation of the laws—i.e., the ‘abridg[ement] of speech’—rather than merely the motives of those who enacted them.” Reed, 135 S. Ct. at 2229 (alteration in original) (quoting U.S. Const. amend. I). Historically, however, the mere “operation” of a speech restriction did not present a judicially cognizable First Amendment problem unless it abridged either a common-law right or the inalienable liberty to express one’s thoughts. See supra notes 260-274 and accompanying text.

329

1 William Blackstone, Commentaries *125.

330

St. George Tucker, On the State of Slavery in Virginia (1796), reprinted in View of the Constitution of the United States with Selected Writings,supra note 133, at 402, 407.

331

Jack M. Balkin, Living Originalism 32 (2011); see also id. at 42 (identifying “abstract or vague phrases of the Constitution,” including “cruel and unreasonable punishments” and “freedom of speech”); id. at 350 n.12 (making the same point with respect to “the Fourth Amendment’s standard of ‘unreasonable’ searches and seizures and the First Amendment’s principle of ‘freedom of speech’”); Dworkin, supra note 54, at 199 (“The First Amendment, like the other great clauses of the Bill of Rights, is very abstract.”).

332

Cf.Dworkin, supra note 54, at 272 (“The framers meant to enact a moral principle of constitutional dimensions, and they used broad and abstract language appropriate to that aim.”).

333

Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1192 (2016); see also id. at 1270-71 (“That which was consistent with the common law was reasonable and, therefore, legal. That which was inconsistent was unreasonable and illegal.”).

334

Id. at 1192.

335

John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1743, 1745 (2008).

336

Id. at 1745.

337

By overwhelmingly relying on Founding Era legal elites, Donohue and Stinneford implicitly accept their sources’ belief that ostensibly abstract terms like “unreasonable” and “unusual” should be read as legal terms of art. Stinneford discounts a contrary statement by Samuel Livermore during the First Congress because “Livermore . . . does not appear to have been within the mainstream of eighteenth-century thought regarding the usefulness of common law precedent generally.” Stinneford, supra note 335, at 1809. But while Stinneford is surely correct that Livermore was outside the mainstream of constitutional thought among legal elites, his view nonetheless reflected an important current in American constitutional thought.

338

Hay, supra note 152, at 9.

339

To be sure, originalists might accept the more lawyerly Federalist position, leaving the Donohue and Stinneford positions undisturbed. But that choice, it is worth noting, would require accepting Federalist views of the First Amendment, too, thus undermining any plausible originalist basis for modern speech law.